Decisions

TATC File No. MQ-0108-27

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Jean-Pierre Gouin, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Danièle Dion


Decision: November 2, 2012

Citation: Gouin v. Canada (Minister of Transport), 2012 TATCE 36 (Review)

Heard in: Montréal, Québec, on April 19 and May 17, 2012

REVIEW DETERMINATION AND REASONS

Held: The Applicant has demonstrated that the Minister of Transport erred in fact and in law in deciding to refuse to issue the Applicant the requested Canadian maritime document. The Member refers the decision back to the Minister for reconsideration.

I. BACKGROUND

[1] On December 17, 2010, the Minister of Transport, Infrastructure and Communities (“Minister”) informed the Applicant, Jean-Pierre Gouin, by way of letter to the Member of Parliament (MP) for Bas-Richelieu–Nicolet–Bécancour, Louis Plamondon, that he was refusing to issue the Applicant a Master 3 000 Gross Tonnage, Domestic certificate (“MD 3000 certificate”), restricted to minor waters.

[2] On March 1, 2011, Mr. Gouin filed a Request for Review with the Transportation Appeal Tribunal of Canada (“Tribunal”) regarding the Minister's decision to refuse to issue the certificate.

[3] On November 2, 2011, the Tribunal concluded that it had the competency to hear Mr. Gouin's Request for Review submitted on March 1, 2011, in respect of the Minister's decision to refuse to issue the Applicant an MD 3000 certificate.

II. STATUTES AND REGULATIONS

[4] Subsection 16(1), paragraphs 16(2)(a) to (c), 16(4)(a) to (e), 16(5)(a) and (b), and 16.1(1)(a) and (b), and subsection 16.1(5) of the Canada Shipping Act, 2001, S.C. 2001, c. 26 (“CSA, 2001”) read as follows :

16. (1) An application for a Canadian maritime document must be made in the form and manner, include the information and be accompanied by the documents specified by the Minister of Transport.

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

(a) require that an applicant provide evidence, including declarations, that the Minister considers necessary to establish that the requirements for the issuance of the document have been met;

(b) if the Canadian maritime document is in respect of a person,

(i) set an examination that the person must undergo, and

(ii) administer the examination; and

(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.

[…]

(4) The Minister of Transport may refuse to issue a Canadian maritime document if

(a) the applicant has not met the requirements for the issuance of the document;

(b) the applicant has acted fraudulently or improperly or has misrepresented a material fact;

(c) the Minister is of the opinion that the public interest and, in particular, the record of the applicant or of a principal of the applicant warrant it;

(d) the applicant has not paid a fee for services related to the document or has not paid a fine or penalty imposed on them under this Act; or

(e) in the case of a Canadian maritime document applied for under Part 3 (Personnel) by a master or crew member,

(i) the master or crew member was on board a vessel that contravened any of sections 5.3 to 5.5 of the Coastal Fisheries Protection Act and knew, when the contravention occurred, that the vessel was committing the contravention, or

(ii) the master or crew member has been found guilty of an offence related to their duties on a vessel or has committed a violation in respect of which a notice of violation was issued under paragraph 229(1)(b).

(5) The Minister of Transport must, immediately after refusing to issue a Canadian maritime document, give the applicant a notice

(a) confirming the refusal and providing all relevant information concerning the grounds on which the Minister has refused to issue the document; and

(b) indicating, in the case of a refusal to issue a document under Part 3 (Personnel) on the grounds set out in paragraph (4)(a), (b), (c) or (e), the address at which, and the date, being thirty days after the notice is given, on or before which, the applicant may file a request for a review of the Minister's decision

16.1 (1) An applicant who receives a notice under subsection 16(5) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the decision if

(a) the request is in respect of a Canadian maritime document that is issued under Part 3 (Personnel); and

(b) the grounds for refusing to issue the document are set out in paragraph 16(4)(a), (b), (c) or (e).

[…]

(5) The member may

(a) in the case of a decision made under paragraph 16(4)(e), confirm the decision or substitute his or her own determination; or

(b) in any other case, confirm the decision or refer the matter back to the Minister of Transport for reconsideration.

[5] Paragraphs 100(d) and (e) of the CSA, 2001 provide as follows:

100. 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

[…]

(d) respecting the qualifications required of applicants for any type or class of certificate specified under paragraph (c), including their medical fitness, minimum age, degree of knowledge, skill, training and experience;

(e) respecting the manner of determining whether a person meets the requirements specified under paragraph (b) in respect of a position or the qualifications required under paragraph (d) for any type or class of certificate of competency or other Canadian maritime document;

[6] Subsection 1(1), paragraph 2(a), paragraph 100(e), section 104, and item 23(a) of Schedule 1 to Part 1 of the Marine Personnel Regulations, SOR/2007-115 (“MPRs”), provide as follows:

1. (1) The following definitions apply in these Regulations.

“applicant” means a person who applies to obtain, renew or replace a certificate or an endorsement issued under Part 1 or 2.

[…]

2. In these Regulations,

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

[…]

100. The Minister may issue the following certificates:

(e) Master 3 000 Gross Tonnage, Domestic;

[…]

104. Except in the cases set out in section 105, the holder of a Master, a Mate or an Engineer certificate that was issued before the day on which this section comes into force, that has not been renewed under these Regulations and that is set out in column 1 of Schedule 1 to this Part may obtain, in order to continue to have a certificate that is valid for use at sea and at the latest on the date of the expiry of the certificate, on application, an exchange of that certificate for one of the corresponding certificates set out in column 3 having, where applicable, the endorsement and limitation set out in column 4 of that item, and for that purpose the holder shall meet the requirements set out in column 2 of that item or paragraph, if any, and the requirements of section 106 or 107, as the case may be.

[…]

SCHEDULE 1 TO PART 1

(Subsection 103(4), sections 104 and 105, item 1 of the table to subsection 148, section 184 and subsection 212(7))

CERTIFICATE EXCHANGE AND FIRST RENEWAL OF A CERTIFICATE ISSUED BEFORE THE COMING INTO FORCE OF SECTIONS 104 to 106

23. (a) Master, Minor Waters (CMW)

Successfully complete the following courses:

(a) SEN limited;

(b) MED in advanced fire fighting; and

(c) MED for senior officers.

Master 3 000 Gross Tonnage, Domestic limited to a near coastal voyage, Class 2 if the voyage is a “minor waters voyage” as defined in the Canada Shipping Act, in the version that was in force immediately before the coming into force of the Act. None N/A

[7] Subsection 1(1) and paragraph 2(l) of the Marine Certification Regulations, SOR/97-391 (“MCRs”) provide as follows:

1. (1) “applicant” means a person who has applied to be examined to obtain a certificate listed in section 2.

[…]

2. The following certificates may be granted to applicants by the Minister in accordance with section 125 of the Act:

(l) master, limited;

[8] Section 2 and paragraph 17(c) of the Masters and Mates Examination Regulations, CRC, Chapter 1446 (“Examination Regulations”) provide:

2. In these Regulations,

“applicant” means an applicant for a certificate or an endorsement;

[…]

17. An applicant for

(c) a minor waters certificate as master,

shall be admitted to any examination after reaching 19 1/2 years of age if he complies with paragraphs 4(a) and (b) and has the qualifications set out in Schedule III for the certificate other than the qualifications in respect of age.

[9] Sections 43 and 44 of the Interpretation Act, R.S.C. 1985, c. I-21, provide as follows:

43. Where an enactment is repealed in whole or in part, the repeal does not

(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,

(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or

(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),

and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.

44. Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,

(a) every person acting under the former enactment shall continue to act, as if appointed under the new enactment, until another person is appointed in the stead of that person;

(b) every bond and security given by a person appointed under the former enactment remains in force, and all books, papers, forms and things made or used under the former enactment shall continue to be used as before the repeal in so far as they are consistent with the new enactment;

(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;

(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto

(i) in the recovery or enforcement of fines, penalties and forfeitures imposed under the former enactment,

(ii) in the enforcement of rights, existing or accruing under the former enactment, and

(iii) in a proceeding in relation to matters that have happened before the repeal;

(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;

(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;

(g) all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead; and

(h) any reference in an unrepealed enactment to the former enactment shall, with respect to a subsequent transaction, matter or thing, be read and construed as a reference to the provisions of the new enactment relating to the same subject-matter as the former enactment, but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be read as unrepealed in so far as is necessary to maintain or give effect to the unrepealed enactment.

III. PRELIMINARY ISSUE

[10] The Minister's representative asked the Tribunal to decide on the preliminary issue of which party has the burden of proof in this matter. According to him, since this is not a disciplinary action and the Tribunal cannot substitute its decision for the Minister's and must refer the matter back to the Minister for reconsideration, it is thus up to the Applicant to prove the necessary facts to persuade the Tribunal to request a reconsideration.

[11] The Applicant's representative agrees with the position of the Minister's representative, and admits that it is his burden to demonstrate the facts to establish that the Minister's refusal to issue an MD 3000 certificate was not based on reasonable grounds.

[12] The Tribunal is of the opinion that it is in the interest of the parties that the Applicant demonstrate the facts and legal arguments supporting his argument that the Minister's refusal to issue an MD 3000 certificate is unfounded, and that the Minister's representative respond to the Applicant's arguments.

IV. ELEMENTS TO BE PROVEN

[13] The Applicant must prove that the Minister's refusal to issue an MD 3000 certificate is not based on reasonable grounds, pursuant to the applicable regulatory requirements.

V. EVIDENCE

A. Applicant

(1) Jean-Pierre Gouin

[14] On May 6, 1997, Mr. Gouin came to the office of Transport Canada in Montréal, Québec, and met Inspector André Galiay. Mr. Gouin filled out an Application to be Examined for a Certificate, to request a certificate for Master, Minor Waters (“CMW certificate”). He paid the fees for the examination, and Transport Canada issued him Applicant Identification Number CDN 89575 (S). He submitted various required documents, including a testimonial of good conduct, an optometrist's certificate, as well as a letter from an employer indicating “time at sea”, completed by Mr. Gouin.

[15] Inspector Galiay gave him a document listing the requirements for the CMW certificate, and describing the examination process. A schedule attached to this document indicates when the examinations for each certificate would take place between January to December 2007. No mention was made by Inspector Galiay of a time limit for completing the exams and meeting the requirements for the CMW certificate. Inspector Galiay invited him to register for the examination on this date in order to protect his rights, since the enabling Act was to be amended. Mr. Gouin registered for the Chartwork and Pilotage examination on May 12, 1997, which he failed.

[16] On May 8, 1997, Mr. Gouin registered for the course, Marine Emergency Duties II (“MED II”).Given the high demand for this course, he was not invited to attend the course until December 2001 and January 2002, and he received the appropriate certificates.

[17] In March 2001, Mr. Gouin received a Radio Operator Certificate - Marine. From 2001 to 2006, he continued his studies privately in order to prepare for the other examinations required to obtain the CMW certificate. In February 2006, he received his Marine Advanced First Aid Certificate, and on April 2, 2008 he obtained a Marine First Aid Certificate from the Red Cross.

[18] Between 2006 and 2007 he passed the following exams:

  • Chartwork and Pilotage, April 5, 2006;
  • Navigation Safety, February 14, 2007;
  • Ship Management, March 21, 2007; and
  • Bridge Watch Rating, April 11, 2007

(Exhibit M1 – Candidate Status Report).

[19] On June 21, 2007, he took the oral exams, thinking he would receive the CMW certificate. In fact, the following certificates were issued to him instead: Master, Limited for a Passenger Vessel of not more than 60 tons for the vessel Fouineur; First Mate, Limited for a Passenger Vessel of not more than 60 tons for the vessel Le Survenant III; Chief Mate, and Engineer, for the vessels Fouineur and Le Survenant III. These certificates are restricted to these vessels and to navigation zones. When he received the above-mentioned certificates, Mr. Gouin requested a CMW certificate, but he was refused one without an explanation.

[20] By June 21, 2007, Mr. Gouin had completed all of the requirements for the CMW certificate.

[21] Other certificates were issued to him afterwards, including a Master, Limited, for a Vessel of Less than 60 Gross Tonnage certificate for the Fouineur issued on October 29, 2007; a Master, Limited, for a Vessel of 60 Gross Tonnage or More certificatefor the vessel Le Survenant III issued on August 13, 2008; as well as a certificate for Master, Limited, for a Vessel of less than 60 Gross Tonnage for the vessel Pilote 2000 issued on October 22, 2008.

[22] Still with the goal of receiving a CMW certificate, Mr. Gouin took an examination and received a Simulated Electronic Navigation Limited certificate in December 2007.

[23] Mr. Gouin testified that he has tried numerous times (nine times) to take the stability examination for ships of 350 tons. He passed the exam, although he remarked to the inspector correcting the exam that he was using an English correction sheet to correct his French exam.

[24] During his testimony, Mr. Gouin raised doubts as to the origin of documents forming part of the Minister's file on him. Having obtained disclosure of his file, which is filed under Exhibit R-31, he submits that the documents therein are the ones that were sent as an attachment in the letter from Mr. Plamondon to the Minister on April 19, 2010. Consequently, according to him, this is the reason why the Minister confirms in his letter dated October 7, 2010, that he found no entry between 1997 and 2006 when he examined his file.

[25] On April 19, 2010, Mr. Plamondon wrote to the Minister, asking him to proceed to issue the CMW 3000 certificate for and in the name of Mr. Gouin. In his letter, Mr. Plamondon describes the steps that Mr. Gouin took with various Transport Canada officials in order to obtain the CMW certificate, which was replaced by the MD 3000 certificate following the amendments to the legislation.

[26] On October 7, 2010, the Minister responded to the letter from Mr. Plamondon. He indicates that “ examination of Mr. Gouin's file reveals that there was no entry made between 1997 and 2006, which indicates that he did not contact the Department during this period of 9 years”.He further explains that Mr. Gouin “never met the regulatory conditions of eligibility required to obtain the certificate during the five years allotted by the transition period, that is, between 1997 and 2002”.

[27] He continues:

Furthermore, the Marine Personnel Regulations, in effect since July 1, 2007, no longer contain the requirements related to the certification for Master, Minor Waters. As such, Mr. Gouin cannot take advantage of the exchanges indicated in the tables in the Regulations since he has never held the certificate in question, which existed under the Marine Certification Regulations.

[28] Mr. Plamondon again wrote to the Minister on November 1, 2010, to inform him of the factual errors contained in the Minister's letter, and to reiterate his request on behalf of Mr. Gouin.

[29] The Minister responded to MP Plamondon on December 17, 2010. He affirmed that “in order to benefit from the grandfather clause for the certificate of Master, Minor Waters, an individual must have received that certificate before the new regulation came into effect”. He went on to describe that the requirements related to obtaining that certificate were contained in the Masters and Mates Examination Regulations, and that the regulation had changed twice since then. The Minister referred to section 105 of the MPRs, which mention that the holder of a CMW certificate may exchange it for an MD 3000 certificate. Since Mr. Gouin did not obtain the initial CMW certificate, Transport Canada cannot legally issue the MD 3000 certificate in exchange. According to the Minister, the first certificate (the CMW) was withdrawn from regulations in 1997.

[30] Finally, the Minister indicated that Mr. Gouin arrived at the examinations for a level of certificate that was below the one desired.

(2) René Laroche

[31] René Laroche is a ship captain. He presently holds an MD 3000 certificate.

[32] The MD 3000 certificate was issued to him in 2011 as a replacement for a CMW certificate, which he had held for a long period of time, and which was renewed in 2001 as well as in 2006.

B. Minister

(1) Pierre Hamel

[33] Pierre Hamel testified for the Minister. He is a marine expert with Transport Canada, Montréal region, and has been an examiner for the past 27 years.

[34] He says that the regulatory framework has changed, but that CMW certificates continue to be renewed for seafarers who received one before they were withdrawn in 2002, but under the new name of Master 3 000 Gross Tonnage, Domestic.

[35] Mr. Hamel testified that on May 6, 1997, Mr. Gouin's application for a CMW certificate was accepted, and that he will be able to obtain the CMW certificate if all the conditions are met. He does not know if a time limit for completing the program was established in 1997.

[36] To obtain the CMW certificate, Mr. Hamel testified that a candidate must have completed 12 months of time at sea, taken the course on Marine Emergency Duties, written two exams, and taken an oral exam, a vision exam, as well as a first aid course.

[37] Mr. Hamel produced the document titled Candidate Status Report (Exhibit M-1). This document is a computer report for candidate Jean-Pierre Gouin from the Transport Canada “Aces” system. The document contains the candidate's background including the time at sea approved for various certificates, the results of all of his exams, training, and the list of certificates that he had obtained. According to this document, Mr. Gouin took the CMW1 – Chartwork and Pilotage exam on May 12, 1997, which he failed. In addition to this computer report, there is another report for candidate Jean-Pierre Gouin, which is provided in Exhibit R-31.

[38] According to Mr. Hamel, the time at sea completed by Mr. Gouin was approved for the CMW certificate.

[39] Although he worked as an inspector during the relevant years, Mr. Hamel is not aware of the existence of a five-year transition period between 1997 and 2002, for the entering into force of the new regulations, which changed the eligibility conditions for the CMW certificate in question.

[40] He testified that the CDN is an identification number that a candidate or seafarer keeps for his entire life.

[41] In response to a question from Mr. Fortin regarding the basis upon which Transport Canada can renew a certificate that has been abolished, he testified that it is not the certificates that have been withdrawn, but the possibility of still obtaining the CMW certificate.

VI. ARGUMENTS

A. Applicant

[42] Mr. Fortin submits that the Minister's decision contains errors of fact and law. Among other things, when he made his decision, the Minister did not take into account the fact that Mr. Gouin had, on June 21, 2007, fulfilled all of the requirements for the CMW certificate. This failure to account for a very important element, according to the Supreme Court of Canada case of Oakwood Development Ltd. v. St. François Xavier (Rural Municipality), [1985] 2 SCR 164, constitutes an error in the same way as inappropriately taking into consideration an external factor.

[43] Mr. Fortin refers to section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7, to discuss the events allowing for Federal Court review. He refers to paragraphs 18.1(4)(c), which discusses a decision or order that has erred in law, and 18.1(4)(d), a decision based on an erroneous finding of fact, made in a perverse or capricious manner or without regard for the material before it, while at the same time realizing that this Tribunal does not have the power of Federal Court review.

[44] Mr. Fortin refers to section 15 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29,to raise the issues of fairness and natural justice. According to him, the Tribunal must ask whether the Minister's decision is fair. The Tribunal must also ask if, when Inspector Galiay accepted Mr. Gouin's application, he committed to issue the CMW certificate on behalf of the Minister once the requirements had been met.

[45] According to Mr. Fortin, the Minister's decision in the letter dated October 7, 2010 (Exhibit R-30), contains numerous factual errors. First, he is of the opinion that the statement from the Minister that Mr. Gouin's file holds no entries between 1997 and 2006 is inaccurate. Five of the eleven elements required for the CMW certificate had been met before December 4, 2001.

[46] Mr. Fortin submits that the Minister is mistaken in concluding that Mr. Gouin did not communicate with Transport Canada for a period of 9 years. Mr. Fortin refers to the testimony of Mr. Gouin that regarding the period in question, Mr. Gouin came to the office of Transport Canada in Montréal numerous times to gather information and talk to the Minister's inspectors.

[47] Regarding the Minister's assertion that Mr. Gouin never satisfied the regulatory eligibility requirements for obtaining a CMW certificate during the five years allotted by the transition period, that is, between 1997 and 2002, Mr. Fortin argues that Mr. Gouin had met several eligibility conditions, and submits that there was no transition period between 1997 and 2002. Mr. Fortin refers to the testimony of Mr. Hamel who recognizes that no regulatory requirements set a deadline for completing and passing the exams and for satisfying the requirements to obtain a CMW certificate.

[48] Mr. Fortin notes the Minister's statement that the CMW certificate existed pursuant to the MCRs. These regulations were in force on June 21, 2007, at the time that Mr. Gouin had satisfied the eligibility requirements for the certificate in question.

[49] Regarding the second letter from the Minister, dated December 17, 2010, Mr. Fortin questions the validity of the Minister's statement that a person must have obtained the CMW certificate before the entering into force of a new regulation in order to benefit from the grandfather clause, since this claim is not supported by legislation or regulations.

[50] Furthermore, Mr. Fortin submits that Mr. Gouin demands the right to be evaluated according to the eligibility conditions stipulated in the Examination Regulations which were in effect at the time of his application to the examinations in 1997, rather than the right to the permit. Since, according to the Minister, the CMW certificate existed under the MCRs, which remained in effect until July 1, 2007, and Mr. Gouin met the requirements for obtaining the CMW certificate as of June 21, 2007, Transport Canada should have issued him a CMW certificate. Since the CMW certificate has been replaced by the MD 3000 certificate, he has the right to request the issuance of the MD 3000 certificate.

[51] The Minister's statement that the CMW certificate was withdrawn from the regulations in 1997 is contradicted, according to Mr. Fortin, by two allegations of the Minister: in his letter dated October 7, 2010, in which the Minister claims that the CMW certificate exists pursuant to the MCRs which, he reminds us, were in effect from June 1997 to July 2007; and in his letter dated December 17, 2010, where the Minister indicates the possibility of exchanging the abovementioned CMW certificate. Moreover, on March 21, 2007, Mr. Gouin took an exam in ship management which was specifically reserved for a CMW certificate.

[52] Finally, according to Mr. Fortin, the fact that Mr. Gouin took other exams is not relevant. In the words of Mr. Fortin, “beggars can't be choosers [faute de grives, il a mange des merles]”.

[53] According to Mr. Fortin, the Minister created an impediment to the exercise of his powers when he stated that it is legally impossible to issue the MD 3000 certificate since the Applicant is not a holder of a CMW certificate, which ceased to exist. However, in his opinion, the CMW certificate existed under the MCRs,in force until July 1, 2007.

[54] Mr. Fortin covered aspects of the CSA, 2001 and regulatory changes relevant to the issuance of certificates, as well as the role played by inspectors in the process. According to him, in reading the regulations, the CMW certificate can be renewed until 2007. When the MPRs entered into force, the CMW certificate became exchangeable until it expired. In 1997, section 2 of the MCRs listed the certificates and competencies that “may” be issued by the Minister. Mr. Fortin refers to paragraph 43(c) of the Interpretation Act, R.S.C., 1985, c. I-21, where it is stated that the repealing of a regulation does not “affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed”. He also refers to paragraph 44(c) of the same Act, where it is stated that “every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment” and the above-mentioned procedures including, according to him, the process in which Mr. Gouin was involved when he submitted his candidacy to receive a CMW certificate.

B. Minister

[55] According to Mr. Ritchie, the CMW certificate was withdrawn in 1997. Inspector Galiay was mistaken when he mentioned that there was a right pursuant to a grandfather clause in respect of the CMW certificate if an application had been made before the new regulation entered into force.

[56] Mr. Ritchie submits that the CMW certificate was issued pursuant to the Examination Regulations. The Minister had the right to issue the CMW certificate until the MCRs came into force in July 2007 (sic 1997). Afterwards, the Minister no longer had the power to issue a CMW certificate. As such, the CMW certificate was no longer issued after June 1997, but certain provisional certificates were issued as replacements, including those issued to Mr. Gouin.

[57] On July 1, 2007, when the MPRs came into force, the holders of CMW certificates had to exchange or replace the CMW certificate with the MD 3000 certificate.

[58] As for the Minister's letter, Mr. Ritchie recognizes that it contains errors of law. First, the CMW certificate was issued pursuant to the Examination Regulations and not the MCRs. Secondly, the five-year transition period was only set out by the MPRs in 2007 to replace certificates. However, according to him, there is no reason to refer the matter back to the Minister for reconsideration since the decision would be the same, even if the decision was made on an erroneous factual and legal basis.

[59] Regarding Mr. Gouin's argument that he has a right pursuant to a grandfather clause to the former procedure, Mr. Ritchie refers to several examples of jurisprudence which clearly establish that there is no grandfather right in a procedure. According to Mr. Ritchie, section 127 of the MPRs establishes a procedure for exchanging a CMW certificate with an MD 3000 certificate.

[60] He admits that meeting the requirements for obtaining a CMW certificate was not subject to a time limit.

[61] According to Mr. Ritchie, the Minister's ability to issue a certificate is found in the regulation; as soon as the regulation changed, he could no longer issue that certificate.

[62] As for Mr. Fortin's suggestions on the issue of fairness and natural justice, Mr. Ritchie submits that these concepts are covered by administrative law and that with regard to issuing a certificate that has been withdrawn, it is not within administrative power.

[63] The Tribunal must reject the Applicant's request and confirm the Minister's decision since the Applicant has not proven the existence of a right to the certificate.

C. Applicant (in reply)

[64] In reply, Mr. Fortin emphasized that that Minister did not seem limited by the terms that appeared under the list of certificates listed in section 2 of the MCRs since the certificate mentioned in subsection 2(l) is called “master, limited” while the certificate issued to Mr. Gouin is called “Master, Limited for a Passenger Ship of not more than 60 tons”; he was also given a certificate called “Master, Limited, for a Vessel of 60 Gross Tonnage or More”.

VII. ANALYSIS

[65] The application to the examinations made by Mr. Gouin on May 6, 1997, in order to obtain a certificate, is subject to the Examination Regulationss that were in force at that time. Mr. Gouin paid the fees for the exam and Transport Canada issued him Applicant Identification Number CDN 89575(S). The Examination Regulations provide that an applicant who meets the requirements may obtain a CMW certificate.

[66] On May 6, 1997, Inspector Galiay committed to issuing the CMW certificate on behalf of the Minister once he had met all of the requirements. No regulatory provision set a deadline for taking and passing the examinations and for meeting the requirements to obtain a certificate.

[67] On July 1, 1997, the Examination Regulations were withdrawn and replaced by the MCRs. An “applicant” is defined in the MCRs in subsection 1(1) as a “person who has applied to be examined to obtain a certificate listed in section 2”. Section 2 of the regulation lists the certificates which may be issued by the Minister. The CMW certificate is not mentioned there. Subsection 2(l) mentions the “master, limited” certificate.

[68] The MCRs were repealed on July 1, 2007 and replaced by the MPRs. An “applicant” is defined in subsection1(1) of the MPRs as a person who applies to obtain, renew or replace a certificate or an endorsement issued under Part 1 or 2”. Section 100 provides that the Minister may issue certificates which are listed there, including the MD 3000 certificate (paragraph (e)) and the Master, Limited certificate (paragraph (h)). Furthermore, Section 104 of the same regulation states that the holder of a certificate that is listed in Schedule 1 may exchange it for one of the corresponding certificates. Item 23(a) of Schedule 1 provides that the CMW certificate may be exchanged for the MD 3000 certificate, limited to a near coastal voyage, Class 2, if the voyage is a “minor waters voyage” within the meaning of the CSA, 2001, in the version in force before the CSA, 2001.

[69] The evidence reveals that CMW certificates were renewed continually by the Minister until 2011 despite the absence of the CMW certificate in the list in the MCRs. It should be noted that the MCRs do not provide for the possibility of renewing or exchanging the CMW certificate for another certificate. However, the MPRs, which entered into force on July 1, 2007, explicitly provide that the CMW certificate may be exchanged for an MD 3000 certificate.

[70] The Tribunal must conclude that the existence of the CMW certificate in June 2007 is at the very least debatable, notwithstanding the Minister's position that the CMW certificate would have been repealed by the entering into force of the MCRs. At the very least, the application of the regulation by the Minister, and more specifically the systematic renewal of the CMW certificate despite the silence of the regulation, contradicts this position. Moreover, the Minister, in his letter dated October 7, 2010, seems to recognize that the CMW certificate “existed pursuant to the MCRs”.

[71] Mr. Gouin is an “applicant” in the meaning of the Examination Regulations. On the other hand, it is doubtful that Mr. Gouin can be considered an “applicant” in the meaning of the MCRs or the MPRs since he did not submit an application in order to obtain a certificate listed in these regulations.

[72] Paragraph 43(c) of the Interpretation Act stipulates that the repealing of a regulation should not affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealled. In his letter dated December 17, 2010, the Minister discussed the “grandfather clause for the Master, Minor Waters” certificate. Since the regulation is silent regarding such a clause, it must be presumed that the Minister is alluding to the concept of a right pursuant to a grandfather clause.

[73] Contrary to the Minister's arguments, neither the MCRs nor the MPRs constitute procedural texts. These regulations establish the existence of the certificates, as well as the eligibility conditions, and therefore pertain entirely to substantive law. The question of a right pursuant to a grandfather clause must therefore be evaluated in light of the applicable legal principles.

[74] A law does not affect grandfather rights unless the legislature clearly expresses an intention to the contrary. This presumption only applies if the law is ambiguous and susceptible to two interpretations, but the “‘entire context' of a provision must be considered to determine if the provision is reasonably capable of multiple interpretations” (see Dikranian v. Québec (Attorney General), [2005] 3 S.C.R. 530, paragraph 36).

[75] Clearly, based on his actions, the Minister has two different interpretations of the MCRs regarding the existence of the CMW certificate and it is thus arguable that the regulation is ambiguous.

[76] On May 6, 1997, Mr. Gouin was an applicant for a certificate. He paid the fee to take the exam. In accepting his Admission Application, in issuing him an Applicant Identification Number, and in accepting the payment of fees, the Minister committed to allowing him to take the examinations and, if successful, to issue him the sought-after certificate. On June 21, 2007, Mr. Gouin completed all of the requirements for the CMW certificate and has the right to demand the issuance of a CMW certificate, if this certificate exists. This concerns a right pursuant to a grandfather clause and not a simple expectation. Bearing in mind the above analysis, it is arguable that Mr. Gouin had, accordingly, a grandfather right to the issuance of the certificate in question, which he was refused without legal justification.

[77] The Minister's representative submits that the Minister cannot legally issue the MD 3000 certificate since Mr. Gouin is not a holder of the CMW certificate required to make the exchange. However, if Mr. Gouin was entitled to demand the CMW certificate in March 2007 and the Minister, acting through his inspectors, failed to issue the certificate in question and did not give legal justification, it is arguable that the Minister, in the application of principles of fairness, must correct the mistake and consider that Mr. Gouin, having fulfilled the eligibility conditions for the CMW certificate, is now eligible to obtain the corresponding certificate if he fulfills the Requirements for Exchange or Additional Requirements Applicable to First Renewals which are listed in Column 2 of item 23(a) of Schedule 1 to the MPRs.

[78] The Tribunal is of the opinion that there is nothing in the legislation that prevents the Minister from issuing an MD 3000 certificate to Mr. Gouin since he has met the requirements for the CMW certificate and retains the same qualifications as all the other holders of CMW certificates who have a right to exchange that certificate for the MD 3000 certificate. The issuance of a MD 3000 certificate to Mr. Gouin does not affect public order.

[79] However, it is not up to the Tribunal to decide on this matter.

[80] The Minister, upon receipt of an application to issue a Canadian maritime document, must evaluate if the request meets application procedures established by regulation. The Minister must make his evaluation taking into account the facts and the applicable legislation. The Minister's decision to issue a certificate is a decision made within the exercise of his administrative power.

[81] The Tribunal is of the opinion that the reasons for the Minister's decision reflected in his letters dated October 7, 2010, and December 17, 2010, raise errors of fact as well as certain contradictions or ambiguities regarding the applicable legislation.

[82] He writes that Mr. Gouin's file shows no entry between 1997 and 2006. This statement is inaccurate, as demonstrated in the document Candidate Status Report (Exhibit M-1).

[83] The Minister argues that Mr. Gouin never met the regulatory eligibility conditions for a CMW certificate during the five years allotted by the transition period, that is, between 1997 and 2002. The Minister's representative did not demonstrate the existence of transitional actions during this period.

[84] The Minister asserts in October 2010 that the CMW certificate existed pursuant to the MCRs, which, he reminds us, were in effect between 1997 and 2007. However, in December 2010, he asserts that the CMW certificate was withdrawn from regulations in 1997.

[85] The Tribunal is of the opinion that the Minister erred in his decision to refuse to issue the requested MD 3000 certificate. The Tribunal cannot presume, as submitted by the Minister's representative, that the Minister would maintain his decision in light of different facts. It is up to the Minister to make a decision after analyzing Mr. Gouin's complete file and after taking into consideration all of the relevant factors in the entire context.

VIII. DETERMINATION

[86] The Applicant has demonstrated that the Minister of Transport erred in fact and in law in deciding to refuse to issue the Applicant the requested Canadian maritime document. The Member refers the decision back to the Minister for reconsideration.

November 2, 2012

Danièle Dion

Member


Interlocutory Decision
Danièle Dion


Decision: November 2, 2011

Citation: Gouin v. Canada (Minister of Transport) TATCE 29 (Interlocutory ruling)

[Official English translation]

Decided on the basis of written submissions

Held: The Tribunal finds that it has jurisdiction to hear the request for review filed by the Applicant, Jean-Pierre Gouin, on March 1, 2011, of the Respondent's decision to refuse to issue a minor waters master's certificate in the Applicant's name.

I. BACKGROUND

[1] On December 17, 2010, the Minister of Transport sent a letter to Louis Plamondon, Member of Parliament for Bas-Richelieu–Nicolet–Bécancour, concerning Jean-Pierre Gouin wanting to obtain a certificate as Master 3 000 gross tonnage, Domestic, limited to minor waters.

[2] On March 1, 2011, the Applicant appealed the Respondent's decision to refuse to issue a minor waters master's certificate in his name. The Transportation Appeal Tribunal of Canada ("Tribunal") notified the Applicant that it would first have to rule on its jurisdiction to hear the Applicant's appeal.

[3] The Applicant filed his written submissions with the Tribunal on April 28, 2011, and they were sent to the Respondent's representatives, who replied on May 27, 2011. The Tribunal received the Applicant's reply on June 2, 2011.

II. STATUTES AND REGULATIONS

[4] Subsections 2(2), 15(1) and 15(2) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, provide as follows :

2. (2) The Tribunal has jurisdiction in respect of reviews and appeals as expressly provided for under the Aeronautics Act, the Canada Shipping Act, 2001, the Marine Transportation Security Act, the Railway Safety Act and any other federal Act regarding transportation.

15. (1) Subject to subsection (2), the Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it or the member and all such matters shall be dealt with by the Tribunal or member as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

(2) The Tribunal shall not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

[5] Subsection 16(1) and paragraphs 16(2)(a) to (c), 16(4)(a) to (e), 16(5)(a) and (b), 16.1(1)(a) and (b) and 16.1(5)(a) and (b) of the Canada Shipping Act, 2001, S.C. 2001, c. 26 ("Act") provide as follows:

16. (1) An application for a Canadian maritime document must be made in the form and manner, include the information and be accompanied by the documents specified by the Minister of Transport.

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

(a) require that an applicant provide evidence, including declarations, that the Minister considers necessary to establish that the requirements for the issuance of the document have been met;

(b) if the Canadian maritime document is in respect of a person,

(i) set an examination that the person must undergo, and

(ii) administer the examination; and

(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.

(4) The Minister of Transport may refuse to issue a Canadian maritime document if

(a) the applicant has not met the requirements for the issuance of the document;

(b) the applicant has acted fraudulently or improperly, or has misrepresented a material fact;

(c) the Minister is of the opinion that the public interest and, in particular, the record of the applicant or of a principal of the applicant warrant it;

(d) the applicant has not paid a fee set under paragraph 35(1)(g) in respect of the issuance of the document or has not paid a fine or penalty imposed on them under this Act; or

(e) in the case of a Canadian maritime document applied for under Part 3 (Personnel) by a master or crew member,

(i)  the master or crew member was on board a vessel that contravened any of sections 5.3 to 5.5 of the Coastal Fisheries Protection Act and knew, when the contravention occurred, that the vessel was committing the contravention, or

(ii) the master or crew member has been found guilty of an offence related to their duties on a vessel or has committed a violation in respect of which a notice of violation was issued under paragraph 229(1)(b).

(5) The Minister of Transport must, immediately after refusing to issue a Canadian maritime document, give the applicant a notice

(a) confirming the refusal and providing all relevant information concerning the grounds on which the Minister has refused to issue the document; and

(b) indicating, in the case of a refusal to issue a document under Part 3 (Personnel) on the grounds set out in paragraph (4)(a), (b), (c) or (e), the address at which, and the date, being thirty days after the notice is given, on or before which, the applicant may file a request for a review of the Minister's decision.

16.1 (1) An applicant who receives a notice under subsection 16(5) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the decision if

(a) the request is in respect of a Canadian maritime document that is issued under Part 3 (Personnel); and

(b) the grounds for refusing to issue the document are set out in paragraph 16(4)(a), (b), (c) or (e).

(5) The member may

(a) in the case of a decision made under paragraph 16(4)(e), confirm the decision or substitute his or her own determination; or

(b) in any other case, confirm the decision or refer the matter back to the Minister of Transport for reconsideration.

III. sUMMARY of facts

[6] The Tribunal accepts the following relevant facts:

(a) On November 1, 2010, Member of Parliament Louis Plamondon sent a letter to the Minister of Transport concerning Jean-Pierre Gouin's obtaining a certificate as Master 3 000 Gross Tonnage, Domestic , limited to minor waters. Neither of the parties filed this letter on the record.

(b) The Minister of Transport replied to Mr. Plamondon in a letter dated December 17, 2010, in which he briefly discussed the regulations applying to the issuance of certificates. He dealt more specifically with the rules that apply to the certificate for Master 3 000 Gross Tonnage, Domestic, limited to minor waters, and concluded that [translation] "Transport Canada cannot lawfully issue Mr. Gouin a certificate as Master 3 000 Gross Tonnage, Domestic, limited to minor waters, because he has never obtained a minor waters master's certificate". He also noted that the Applicant [translation] "has written examinations for less demanding certification, that is, for a Master, Limited certificate for a vessel 60 tonnes or more, which is limited to a specific vessel and area of operation".

IV. Analysis

[7] Subsection 16(1) of the Act provides that the Minister may specify the form and manner for making an application for a maritime document. These requirements include the information that the application must contain and the documentation that must accompany it. The requirements may also pertain, among other things, to evidence establishing that the requirements for issuing the document have been met, in accordance with paragraph 16(2)(a), and to the applicant's undergoing an exam, in accordance with paragraph 16(2)(b) of the Act.

[8] The requirements are prescribed, among other regulations, by the Marine Personnel Regulations, including the standards they integrate by reference.

[9] Under paragraph 16(4)(a) of the Act, the Minister has the discretion to refuse to issue a Canadian maritime document if the applicant has not met the requirements for the issuance of the document.

[10] From the statements by the Minister of Transport in his December 17, 2010 letter to Mr. Plamondon, it is obvious that the Minister regarded the Applicant as having made an application for a certificate as Master 3 000 Gross Tonnage, Domestic, limited to minor waters, and that the Minister was considering that application.

[11] The Minister's view seems to have been that he had the essential factual evidence to determine whether the Applicant could qualify for the "grandfather" clause for the minor waters master's certificate, which is set out in the Marine Personnel Regulations. The Minister seems to have analyzed those facts in light of the applicable regulations and concluded that the Applicant could not lawfully be issued the certificate for which he had applied, given his personal situation.

[12] The Minister clearly made a decision on the basis of a legal analysis showing that the Applicant did not meet the requirements for the issuance of the document, as he had [translation] "never held a minor waters master's certificate". Consequently, the Tribunal is of the view that the Minister refused to issue a maritime document by exercising his discretion under paragraph 16(4)(a) of the Act, and provided reasons for his decision as required by paragraph 16(5)(a) of the Act.

[13] At paragraph 12 of his Reply, the Respondent contends that the Applicant did not receive a notice of refusal consistent with the standard template attached to the Respondent's Reply and, as a result, did not receive the notice of refusal described at subsection 16(5) of the Act. The Tribunal cannot accept that argument, as it is devoid of any legal basis. In addition, the fact that the Minister's decision fails to meet the requirements set out at paragraph 16(5)(b) does not in any way change the nature of the Minister's decision.

[14] At paragraph 13 of his Reply, the Respondent contends that a decision may not be made before the prescribed requirements are met. This is a circular argument, since it is precisely the Minister's task to determine whether the requirements for the issuance of a document in respect of his acceptance or refusal were met.

[15] As for paragraph 14 of the Reply, to go by the nature of the Minister's statements in his letter of December 17, 2010 to Member of Parliament Mr. Plamondon, the Minister was obviously of the opinion that Mr. Plamondon was acting as the Applicant's agent.

[16] Under paragraph 16.1(1)(b) of the Act, the Tribunal has jurisdiction to hear the Applicant's request for review and to exercise its decision-making powers pursuant to the Act.

V. RULING

[17] The Tribunal is of the opinion that the Minister refused to issue a maritime document in accordance with his powers pursuant to paragraph 16(4)(a) of the Act, that the Minister's letter to Mr. Plamondon, dated December 17, 2010, constitutes a notice of refusal to the Applicant, Mr. Gouin, in accordance with paragraph 16(5)(a) and that the Applicant may have the Minister's decision reviewed by filing a request for review with the Tribunal under subsection 16.1(1) of the Act, which he did. The Tribunal therefore has jurisdiction to hear the request for review.

November 2, 2011

Danièle Dion

Member


Review Determination (2)
Danièle Dion


Decision: