Decisions

TATC File No. MQ-0070-99
MoT File No. N8562-15623

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Administration de Pilotage des Laurentides, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canada Shipping Act, 2001, S.C. 2001, c.26, para. 20(1)(a)


Review Determination
Yves Villemaire


Decision: January 19, 2012

Citation: Laurentian Pilotage Authority v. Canada (Minister of Transport), 2012 TATCE 2 (Review)

[Official English translation]

Held: The Minister of Transport did not prove, on a balance of probabilities, that under paragraph 20(1)(a) of the Canada Shipping Act, 2001, the Applicant, the Laurentian Pilotage Authority, did not meet the requirements for the issuance of a Canadian maritime document. The Member refers the matter back to the Minister for reconsideration.

I. BACKGROUND

[1] On August 11, 2010, the Minister of Transport (Minister) issued a Minimum Safe Manning Document – Non-convention vessels (SMD) to the Applicant, the Laurentian Pilotage Authority (LPA) for one of its vessels, the GRANDES EAUX. This three-person SMD (2010-00667-300), dated August 11, 2010, replaced the two-person SMD (2009-00604-300) dated October 29, 2009.

[2] On August 31, 2011, the LPA filed a request for review with the Transportation Appeal Tribunal of Canada (Tribunal) concerning the Minister's decision to replace the two-person SMD (2009-00604-300).

[3] On January 4, 2011, the Minister gave the LPA a Notice Confirming Cancellation of a Canadian Maritime Document (Notice), dated December 23, 2010, in relation to SMD 2009-00604-300. The Notice states the following:

[translation]

Grounds for cancellation:

20(1)(a) the requirements for the issuance of the document are no longer met.

II. STATUTES, REGULATIONS AND POLICIES

[4] Paragraphs 6(a) and (i), subsection 16(1), paragraphs 16(1)(a) and (c), subsection 20(1), sections 20.1 and 20.3, subsections 20.4(1) and (7), paragraph 100(a), paragraph 106(1)(a) and subsections 106(2) and 211(1) of the Canada Shipping Act, 2001, S.C. 2001, c. 6 (Act) read as follows:

6. The objectives of this Act are to

(a) protect the health and well-being of individuals, including the crews of vessels, who participate in marine transportation and commerce;

[. . .]

(i) establish an effective inspection and enforcement program.

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;

[. . .]

(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.

20. (1) Subject to section 20.1, the Minister of Transport may suspend, cancel or refuse to renew a Canadian maritime document if the Minister is satisfied that

(a) the requirements for the issuance of the document are no longer met;

20.1 The Minister of Transport must, before suspending or cancelling a Canadian maritime document issued under Part 3 (Personnel), give the holder 30 days notice of the proposed suspension or cancellation. The notice must

(a) provide the holder with all relevant information concerning the grounds on which the Minister proposes to suspend or cancel the document; and

(b) indicate, in the case of a proposed suspension or cancellation of a document on the grounds referred to in paragraph 20(1)(a), (b), (c), (e) or (f) or subparagraph 20(1)(g)(ii), the address at which, and the date, being 30 days after the notice is given, on or before which, the applicant may file a request for a review of the Minister's decision.

20.3 Except where notice of a proposed suspension or cancellation of a Canadian maritime document is given under section 20.1, the Minister of Transport must, immediately after suspending, cancelling or refusing to renew a Canadian maritime document, give the holder a notice that

(a) confirms the suspension, cancellation or refusal and provides all relevant information concerning the grounds on which the Minister suspended, cancelled or refused to renew the document; and

(b) indicates, in the case of the suspension or cancellation of, or the refusal to renew, a document on the grounds referred to in paragraph 20(1)(a), (b), (c), (e) or (f) or subparagraph 20(1)(g)(ii), the address at which, and the date, being 30 days after the notice is given, on or before which, the applicant may file a request for a review of the Minister's decision.

20.4 (1) Subject to subsection (2), the holder of a Canadian maritime document that is referred to in a notice under section 20.1 or 20.3 may, within the time specified in the notice or any further time that the Tribunal on application allows, file a written request for a review of the decision referred to in the notice.

[. . .]

(7) The member may

(a) in the case of a decision made under paragraph 20(1)(e) or subparagraph 20(1)(f)(ii) or (iii), confirm the Minister of Transport's decision or substitute his or her own determination; and

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

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

(a) specifying the positions that shall be occupied on board Canadian vessels, or classes of Canadian vessels, their minimum number and the types and classes of Canadian maritime documents that persons in those positions shall hold;

106. (1) The authorized representative of a Canadian vessel shall

(a) ensure that the vessel and its machinery and equipment meet the requirements of the regulations made under this Part;

[. . .]

(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

(b) every term or condition attached to a Canadian maritime document issued in respect of the vessel or its machinery or equipment is met.

211. (1) A marine safety inspector referred to in section 11 or a person, classification society or other organization authorized to carry out inspections under section 12 may, for the purpose of ensuring compliance with a relevant provision, board any vessel or enter any premises or other place at any reasonable time and carry out any inspection that the inspector, person, classification society or other organization considers necessary and that the Minister has authorized them to carry out.

[5] Section 201, paragraph 202(3)(b), subsections 207(1) and (2), paragraphs 207(3)(a), (c) and (i), subparagraph 207(3)(d)(i), subsection 207(4), paragraph 216(2)(b) and subsection 225(1) of the Marine Personnel Regulations, SOR/2007-115 (MPR) read as follows:

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

202. (3) The authorized representative of a Canadian vessel shall apply to the Minister for the following document and the Minister shall issue the document following that application:

[. . .]

(b) in the case of a vessel that is not a Safety Convention vessel and that is required to carry an inspection certificate, a Safe Manning Document, valid for a maximum of 5 years after the day of its issuance, that specifies

(i) the minimum number of members of the complement,

(ii) the certificates required to be held by the members of the complement,

(iii) any endorsements, conditions or limitations on the certificates referred to in subparagraph (ii),

(iv) the voyages that the vessel is authorized to engage on, and

(v) if applicable, the number of passengers that the vessel is authorized to have on board.

207. (1) The authorized representative of a vessel shall ensure that the minimum complement of the vessel meets the requirements of this section.

(2) A person performing the duties of a position listed on the Safe Manning Document may be assigned to various duties in order to meet the requirements of more than one provision of this section.

(3) The minimum complement of a vessel shall be sufficient in number to ensure compliance with the requirements set out in sections 320 to 322 and shall consist of

(a) the master;

[. . .]

(c) a person in charge of the machinery, except if the vessel

(i) is a passenger-carrying vessel and has a propulsive
power of not more than 75 kW,

(ii) is not a passenger-carrying vessel and has a propulsive power of not more than 750 kW, or

(iii) is exempted under section 217 from the application of sections 218 to 226;

(d) the persons required to keep

(i) the deck watch as set out in sections 213 to 216,

[. . .]

(i) any additional persons who may be required on board by the ordinary practice of seamen for normal safe operation of the vessel, including docking, anchoring and fuelling.

(4) The minimum complement of a vessel, in order to deal with an emergency situation, shall consist of

(a) a master;

(b) the persons required to keep

(i) the deck watch as set out in sections 214 to 216, but the additional person on board a vessel of less than 300 gross tonnage and the second additional person on board a vessel of less than 3 000 gross tonnage may also be assigned to other duties,

(ii) the engineering watch as set out in sections 224 and 225, and

(iii) the radio watch as set out in section 266;

(c) the principal communicator as set out in section 267;

(d) the persons needed to simultaneously carry out the following tasks:

(i) operate and use the fire extinguishing equipment required by or approved under the Fire Detection and Equipment Regulations to fight a fire at any one location on the vessel,

(ii) prepare for launching the survival craft carried in accordance with the Life Saving Equipment Regulations,

(iii) operate the vessel's pumping and emergency power system,

(iv) direct and control the passengers who are on board, and

(v) provide communication between the person in immediate charge of the vessel and the persons directing and controlling the passengers.

(2) The deck watch shall consist of at least the following persons:

[. . .]

(b) subject to subsections (3) and (4), in the case of a vessel of at least 5 gross tonnage, an additional person who holds, if the vessel is at least 500 gross tonnage, at a minimum, an Able Seafarer certificate or a Bridge Watch Rating certificate;

225. (1) A vessel that is equipped in accordance with Schedule VIII to the Marine Machinery Regulations may operate with periodically unattended machinery spaces if the remote control and monitoring systems in those spaces are inspected at intervals not exceeding 12 months and the inspection certificate contains a notation confirming the inspection.

[6] Section 1 of the Vessel Certificates Regulations, SOR/2007-31 (VCR) gives the following definition for a "near coastal voyage, Class 2":

1. The following definitions apply in these Regulations.

[. . .]

"near coastal voyage, Class 2" means a voyage

(a) that is not a sheltered waters voyage; and

(b) during which the vessel engaged on the voyage is always

(i) within 25 nautical miles from shore in waters contiguous to Canada, the United States (except Hawaii) or Saint Pierre and Miquelon, and

(ii) within 100 nautical miles from a place of refuge.

[7] Subsections 1.3 and 10.5 and section 15 of the Guidelines for the Construction and Inspection of Pilot Vessels (2006) ­– ­­­­TP 14530E (GCIPV) read as follows:

1.3 A word of caution must be extended to the Pilotage Authorities, designers and builders of pilot vessels, as they will need to pay special regard to the intended operation (including environmental factors and voyage considerations) when selecting the design, materials and equipment to be used in the vessel's construction.

[. . .]

10.5 Machinery Space: The machinery space may be arranged for unmanned operation. The requirements of this part may be met through additional manning standards (additional qualified crew).

[. . .]

15.1 Every vessel should be fitted with a mechanical device which can retrieve a floating, unconscious person from the water without the need for another person to enter the water.

15.2 The control station for this device should incorporate control of the vessels [sic] propulsion and steering systems.

15.3 The control station for this device should be so located and configured that the operator has, as far as is practical, an unrestricted view of the device and the water in the vicinity of the device.

15.4 Electrical floodlights should be provided to adequately illuminate the sea around the retrieval device to 25 m beyond the vessel. Lights must be switched from the control station.

15.5 Every vessel should be provided with a portable or permanent ladder, or similar for access from the open deck to the waterline, suitable for use by a conscious, uninjured person in the water.

15.6 Every vessel should be provided with one approved life saving hook with minimum 4 m long shaft, suitably stowed.

15.7 The requirements of this part may be met through additional manning standards (additional qualified crew).

[8] Subsections 8.4.1 and 8.4.5 of the Delegated Statutory Inspection Program (DSIP) – Enrolment Procedure (DSIP), in the Marine Safety Management System – TP 13585, read as follows:

8.4.1 Once delegated, the RO shall conduct onboard monitoring activities to ensure that the rectification of deficiencies noted during the enrolment process is in accordance with the agreed upon schedule. The inability of the AR to comply with the rectification of any deficiency schedule shall be communicated by the RO to TCMS so that compliance action may be taken, if warranted. The RO shall ensure that the deficiencies and their resolution progress are recorded.

[. . .]

8.4.5 At the request of the AR, the RO shall make application to the MTRB for any variance from applicable Canadian regulations in regards to construction, maintenance, or inspection frequency of vessels in DSIP.

III.  ELEMENTS TO BE ESTABLISHED

[9] Pursuant to section 20.1 of the Act and after issuing the Notice, the Minister must show, on a balance of probabilities, the following elements:

  1. The two-person SMD (2009-00604-300) set out requirements relating to its issuance on October 29, 2009;
  2. The Minister gave the advance notice required under section 20.1 or the notice required under section 20.3 regarding a change of SMD;
  3. The Minister showed that the requirements for the issuance of the two-person SMD (2009-00604-300) were no longer met at the time of its cancellation on January 4, 2011.

IV. EVIDENCE

A. Minister

(1) Serge Théorêt

[10] Serge Théorêt is a Senior Marine Inspector with Transport Canada. He determines the minimum complements for vessels in the Quebec Region. He stated that over 800 SMDs have been issued in the province since the new MPRs came into effect. He testified that such a document is required for the GRANDES EAUX and that it is up to the vessel's owner to apply for one.

[11] Inspector Théorêt explained that a vessel's minimum complement is established to commensurate with the keeping of the deck watch and the engineering watch and with the handling of any emergencies that may arise. He stated that the minimum complement may include any additional persons who may be required on board by the standard practice of seamen for the normal and safe operation of the vessel.

[12] Inspector Théorêt also explained that engine room automation has made some functions redundant, but that keeping the deck watch still requires two persons on board. He also explained that the normal operation of the vessel GRANDES EAUX, which consists of pilot boarding, requires a third person on deck. He explained that, in an emergency, this third person was needed to handle the fire hose. An SMD requiring three persons (2009-00589-300) on board the GRANDES EAUX was therefore issued to the LPA on September 17, 2009 (Exhibit M-1).

[13] At a meeting on October 28, 2009, Inspector Théorêt testified that the LPA had requested that Transport Canada reduce the minimum complement of the GRANDES EAUX to two persons. He stated that the arguments put forth in support of this request included the fact that the supplied equipment exceeded Guidelines for the Construction and Inspection of Pilot Vessels requirements.

[14] Inspector Théorêt testified that the supplementary equipment included, among other things, a mechanical platform for recovering a person who had fallen overboard. He explained that, on the basis of the LPA's statements, he had agreed to reduce the vessel's minimum complement to two persons by eliminating the third person required by the ordinary practice of seamen. He testified that one of the implicit conditions for the complement to be reduced was that the mechanical platform be in proper working order. As a result, a two-person SMD (2009-00604-300) was issued to the LPA on October 29, 2009 (Exhibit M-3).

[15] Inspector Théorêt testified having gone to Escoumins on November 12 and 13, 2009, to watch a demonstration of the mechanical platform. He explained that the mechanical platform was out of order and that he was therefore unable to report that it was in good working order.

[16] Inspector Théorêt further testified having expressed his concerns about the mechanical platform's operation in adverse or winter weather conditions. He explained that the GRANDES EAUX operates in a near coastal voyage, Class 2, area; however, unlike vessels operated in sheltered waters with a two-person complement, this vessel can go more than two miles from shore. He testified that he intended to observe the mechanical platform in operation after it had been approved for winter use by Transport Canada's delegated classification society, Lloyd's Register.

[17] Inspector Théorêt stated he received at least three telephone calls from the LPA over the nine-month period leading up to August 2010 regarding an apparent ambiguity as to the minimum complement of the GRANDES EAUX. He stated having given the same answer in response to each of these queries: a three-person complement was required if the equipment was not in working order.

[18] Inspector Théorêt testified having informed the LPA by email on August 10, 2010, (Exhibit M-4) that he intended to review the two-person SMD (2009-00604-300) to eliminate any ambiguity as to the minimum complement of the GRANDES EAUX. As a result, the LPA was issued a three-person SMD (2010-00667-300) on August 11, 2010 (Exhibit M-5).

[19] On cross-examination, the Applicant's representative challenged Inspector Théorêt's expert status. The inspector testified regarding his personal experience and explained that his discussions with other Transport Canada inspectors for the Quebec Region enabled him to determine the minimum safe complement in accordance with the objectives set out in section 6 of the Act.

[20] Inspector Théorêt stated that he had not contacted the marine inspectors in the regions for which he was not responsible and was unable to compare the minimum complement determined for the GRANDES EAUX with the complements established in those regions. He explained that each case must be considered on its own merits and that he saw no equivalence between the Quebec Region and the Atlantic and Pacific regions with regard to the operation of pilot boats in ice.

[21] Inspector Théorêt also explained that vessel owners are responsible for requesting an exemption from the MPRs. He explained that the Applicant had to support its request with relevant information, including the specific conditions that could warrant an exemption. He testified that since the LPA had not requested an exemption for the vessel's operation in winter, the minimum complement had been established for its year-round operation.

[22] Inspector Théorêt also testified that he did not deem it necessary to re-inspect the vessel before replacing the two-person SMD (2009-00604-300) with a three-person SMD dated August 11, 2010 (2010-00667-300). He explained that even if the mechanical platform had been in working order at the time of a re-inspection, the questioning of the master and the crew members regarding the minimum complement made it necessary to review the two-person SMD. He explained that it was always possible for the platform to stop working even if it had been in working order a few days previously, so he had to take that into account when reviewing the SMD. He stated that the three-person SMD dated August 2010 took nothing away from the Applicant since it still allowed the vessel to be operated with a minimum complement of two persons.

[23] The Applicant's representative suggested that Transport Canada's questioning regarding the minimum complement was the product of union pressure. He assumed that the communications by union representatives had been intended to preserve seaman positions in the context of the union–management negotiations underway. Inspector Théorêt's reply was that he did not know whether with whom he had spoken while taking telephone calls on this matter were union representatives.

[24] At the beginning of his cross-examination, Inspector Théorêt testified that he did not recall any email requests for information about the ship's minimum complement. He subsequently admitted having answered a request to that effect from Donald Drapeau (Exhibit R-17), a union representative, but also testified that he had not made the connection between the request and the union negotiations. He stated that it seemed entirely legitimate to him for someone to ask questions about a vessel's safety, and that his job was to give information to anyone who asked.

[25] On cross-examination, Inspector Théorêt also admitted that some safety equipment prescribed by the MPRs, such as a portable ladder and a pole with a winch, could be used to recover a person who had fallen overboard if the mechanical platform broke down. However, he testified that the mechanical platform on the GRANDES EAUX had to be operational and that it had to be shown, to Transport Canada's satisfaction, to be in working order.

(2) Luc Charbonneau

[26] Luc Charbonneau stated that, as a senior marine inspector for Transport Canada, he had conducted a handover inspection of the GRANDES EAUX on November 12, 2009. He explained that the purpose of this inspection was to ensure that Lloyd's Register had correctly applied Transport Canada's rules.

[27] On cross-examination, Inspector Charbonneau testified that it had not been conveyed to the LPA that an operational mechanical platform was a formal condition for maintaining the two-person SMD (2009-00604-300). He explained that it had actually been an implicit condition for the issuance of the document that this apparatus be in good working order.

[28] Inspector Charbonneau stated that he had conducted a second handover inspection of the GRANDES EAUX on October 4, 2010. He testified that a recovery exercise using a dummy had shown that the mechanical platform was working at that time.

[29] However, Inspector Charbonneau observed that the note made on November 4, 2010, beside item No. 15 of the Delegated Statutory Inspection Program (DSIP) Report for the ship (Exhibit M-8) states that it had to be demonstrated that the mechanical platform worked properly in winter conditions. He testified that this demonstration had still not taken place.

B. Applicant

(1) Éric Bérubé

[30] Éric Bérubé has been in charge of the Les Escoumins pilot station since 2008. He testified that the GRANDES EAUX's modern equipment made it possible for the master to operate the vessel alone. He stated that even if the master were the only person aboard, he or she could recover someone who had fallen overboard. He explained that the duplication of emergency equipment made the ship safe, even if the mechanical platform was not working.

[31] Mr. Bérubé testified that the inspection certificate held by the vessel and issued by Lloyd's Register shows that the GRANDES EAUX was complying with the regulations. He testified that each of the noncompliant elements improperly interpreted by Lloyd's Register had been subject to a plan of action and corrected. He also emphasized that regular exercises showed that everything was in working order, since nothing to the contrary was entered in the register kept for that purpose.

[32] Mr. Bérubé commented on a video showing drills for recovering someone fallen overboard from the GRANDES EAUX, using, among other means, the mechanical platform (Exhibit R-12). He testified that this platform has been working properly since September 2009 until now, except at the time of Transport Canada's visit during the week of November 12, 2009, three months after the vessel had entered service.

[33] Mr. Bérubé testified that the GRANDES EAUX is not used from January to March and that the pilot boat CHARLEVOIX takes over for work in the ice. He further explained that the GRANDES EAUX is not used in inclement weather because the Les Escoumins pilot station is closed when the sea becomes too dangerous. He testified that this situation had occurred six or seven times over the past year.

[34] Mr. Bérubé testified that the new three-person SMD (2010-00667-300), filed as Exhibit M-5 and Exhibit R-2, was issued on August 11, 2010, before the inspection on November 4, 2010, which led to the note stating that the mechanical platform had not yet been tested in winter (Exhibit M-8). He testified that the exercises, the same ones as shown in the video (Exhibit R-12), had shown that three persons were not required on board to recover a person who had fallen overboard.

[35] Mr. Bérubé testified that he was expecting Transport Canada to pay a visit to check that the mechanical platform worked in winter because that requirement was noted in the LPA action plan. He testified that Transport Canada had simply conducted its regular cycle of inspections and had not come by to perform this particular check before issuing the new three-person SMD (2010-00667-300). He admitted that the LPA had not filed an inspection request with Transport Canada for that purpose between November 2009 and October 2010.

(2) Réjean Lanteigne

[36] Réjean Lanteigne has been Chief Executive Officer of the LPA since 2005. He explained that the GRANDES EAUX was constructed as part of an LPA fleet renewal plan intended to supply the LPA with top-of-the-line pilot boats. He explained that the GRANDES EAUX had been chosen specifically because its modern design and equipment allowed it to be operated by a two-person crew.

[37] Mr. Lanteigne testified that he had never seen the three-person SMD dated
September 17, 2009 (2009-00589-300), filed as Exhibit M-1. He testified that, on
October 28, 2009, during a demonstration of the GRANDES EAUX's capabilities, Transport Canada inspectors had agreed to a minimum complement of two persons. He added that their agreement was evidenced the next day through the issuance of the two-person SMD (2009-00604-300), filed as Exhibit R-1.

[38] Mr. Lanteigne stated that, as of February 2010, the nature of the communications between union representatives and Transport Canada inspectors in the thread of emails (Exhibit R-17) made him to suspect an about-face by the inspectors regarding the minimum complement for the GRANDES EAUX. In addition, he agreed with the Applicant's representative that he was surprised when his organization was informed of Transport Canada's decision to change the complement to three persons.

[39] Mr. Lanteigne stated that the GRANDES EAUX's operations were similar to those of other comparable pilot boats operated by two persons on the country's west and east coasts. He contended that Transport Canada was abusing its authority by applying different criteria in enforcing the MPRs.

[40] Mr. Lanteigne stated that issuing a three-person SMD for the GRANDES EAUX created a deplorable statutory obligation for such a top-of-the-line vessel that is operated safely, even in inclement weather, by a well-trained crew.

V. ARGUMENTS

A. Minister

[41] The Minister's representative submitted that the GRANDES EAUX had to have a minimum complement of three persons. She referred to the MPRs, which prescribe one master under paragraph 207(3)(a), one engineering officer under paragraph 207(3)(c) and section 225, one deck watch officer under subparagraph 207(3)(d)(i) and paragraph 216(2)(b), and any additional person under paragraph 207(3)(i).

[42] The Minister's representative submitted that the combination of functions on board made it possible to reduce the complement required by those provisions from four persons to three, which explained the issuance of the first three-person SMD (2009-00589-300). She noted that the LPA never contested that document.

[43] The Minister's representative pointed out that, at the meeting on October 28, 2009, the LPA had requested to have the minimum complement reduced, arguing that the vessel had additional security equipment, including the mechanical platform.

[44] The Minister's representative submitted that Transport Canada had granted the LPA's request by relying on the requirement for an additional person under paragraph 207(3)(i) of the MPRs. She submitted that this adaptation cannot be justified unless the mechanical platform is operational and weather conditions are suitable. She further contended that, if this interpretation of the MPRs is incorrect, a minimum complement of three persons is required.

[45] The Minister's representative stated that it had to be demonstrated to Transport Canada's satisfaction that the mechanical platform was in working order some time after the meeting on October 28, 2009. She alleged that the LPA failed to fulfill this obligation.

[46] The Minister's representative submitted that the LPA had been informed of the reason for the cancellation of the two-person SMD (2009-00604-300). She described this reason as failure to fulfill the conditions agreed upon at the meeting on October 28, 2009. She explained that these conditions included, among other things, the demonstration that the mechanical platform worked in winter conditions.

[47] The Minister's representative stated that Transport Canada had responded consistently to the requests for explanations regarding the minimum complement required for the GRANDES EAUX. She explained that this answer specified that for a complement of two persons to be permitted, the mechanical platform had to be in working order and weather conditions had to be suitable.

[48] The Minister's representative submitted that the revised three-person SMD (2010-00667-300) was not required because the LPA stated it was compliant with the conditions set out in the document allowing the GRANDES EAUX to be operated with a minimum complement of two persons.

[49] The Minister's representative suggested that the video (Exhibit R-12) does not show the operation of the mechanical platform in realistic weather conditions. She contended that such a demonstration had to be conducted in more severe conditions because the three-person SMD (2010-00667-300) and the inspection certificate from Lloyd's Register (Exhibit R-7) allowed the vessel to be operated in ice, on near coastal voyage, Class 2.

[50] The Minister's representative submitted that the three-person SMD (2010-00667-300) corresponds to the information provided by the LPA on the application form it had submitted to Transport Canada. She contended that Transport Canada had merely carried out its mission pursuant to section 6 of the Act, reasonably and without prejudice.

[51] The Minister's representative emphasized that the Member does not have the authority to grant the Applicant's request to have the two-person SMD (2009-00604-300) restored. She argued that the Member may only confirm the Minister's decision or refer the decision back to the Minister for reconsideration.

[52] The Minister's representative submitted that although it was late, notice of cancellation was given to the LPA. She also contended that the provision regarding notice merely sets out rules of procedure that should be the servant of substantive rights, not the master.

B. Applicant

[53] The Applicant's representative contended that, in issuing the Notice on January 4, 2011, Transport Canada had failed to give the 30-day notice required by section 20.1 of the Act.

[54] The Applicant's representative argued that the requirement to operate the vessel in suitable weather conditions appeared without prior discussions. He contended that the email exchange (Exhibit M-4) between the Transport Canada inspectors on August 10, 2010, supports this argument.

[55] The Applicant's representative stated that since Transport Canada had not expressed any prior concerns regarding the vessel's minimum complement, it had breached procedural fairness in cancelling the document.

[56] The Applicant's representative contended that the Notice does not set out the cancellation grounds as required by paragraph 20.1(a) of the Act. He argued that it was Transport Canada's duty to set out for the LPA the specific elements of its failure to meet the requirements.

[57] The Applicant's representative submitted that the intention to clarify requirements is not, on its own, a valid cancellation ground under section 20.1 of the Act.

[58] The Applicant's representative contended that the requirements that the mechanical platform be in working order and that the vessel be operated in suitable weather conditions were inadmissible for cancelling the SMD. He stated that Inspector Théorêt did not have the authority to establish such requirements under paragraph 202(3)(b) of the MPRs.

[59] The Applicant's representative maintained that the requirement to operate the vessel in suitable weather conditions complicates the vessel's management unduly because it relies on a subjective decision. He contended that attaching this type of condition to the three-person SMD (2010-00667-300) leads to uncertainty for the vessel's insurers, which could have serious consequences for the LPA.

[60] The Applicant's representative stressed that the classification society Lloyds Register had the information the Transport Canada inspectors wanted regarding the working order of equipment on the GRANDES EAUX. He contended that the LPA was following up with Lloyd's Register on all instances of non-compliance. He argued that the delegation of inspection services makes Transport Canada liable for all failures in this regard.

[61] The Applicant's representative suggested that the union representatives' repeated requests (Exhibit R-17) influenced Inspector Théorêt in his decision to revise the two-person SMD (2009-00604-300) in favour of a three-person SMD (2010-00667-300).

[62] The Applicant's representative contended that Inspector Théoret's failure to consider the duplication of safety equipment, the alterations made since the initial inspection and the approved complements for similar pilot boats skewed his analysis of the minimum complement for the GRANDES EAUX.

[63] The Applicant's representative argued that the three-person SMD (2010-00667-300) should be declared invalid and that the validity of the two-person SMD (2009-00604-300) should be upheld.

VI. ANALYSIS

[64] The Minister's representative submits that, in the absence of special circumstances, the first three-person SMD (2009-00589-300) issued for the GRANDES EAUX must be applied.

[65] This three-person complement was established under section 100 of the Act and by subsections 207(1) and (2), paragraphs 207(3)(a) and (c), subparagraph 207(3)(d)(i), paragraph 216(2)(b), paragraph 207(3)(i) and section 225 of the MPRs. The Member is of the opinion that this complement complies with the Act and the MPRs.

[66] The Minister's representative explained that Transport Canada's interpretation was that the fitting of the vessel with an operational mechanical platform satisfied the requirements of paragraph 207(3)(i) of the MPRs in suitable weather conditions. She stated that this interpretation allowed the minimum complement to be reduced to two persons. The Member's view is that this interpretation complies with the MPRs.

[67] The issuance of the two-person SMD on October 29, 2009, (2009-00604-300) shows that the LPA was meeting Transport Canada's requirements at that time. The Minister must therefore show in what way the requirements were no longer being met when this SMD was cancelled on January 4, 2011, under paragraph 20(1)(a) of the Act.

[68] The Applicant's representative suggests that Transport Canada lacked diligence in failing to check with Lloyd's Register about the operation of the mechanical platform. He contends that Lloyd's Register had the information Transport Canada wanted because the LPA was following up continuously with this society on all instances of non-compliance.

[69] The documentary evidence shows that Lloyd's Register inspected the vessel on March 15, 2010, before the three-person SMD (2010-00667-300) was issued by Transport Canada. However, at item 15 on the inspection report (Exhibit M-8), there is a note stating that [translation] "this system will have to be demonstrated under winter conditions 2010." Therefore, in the Member's opinion, Transport Canada could not have obtained the information sought by following up with Lloyd's Register more closely.

[70] The Minister's representative submits that revising the three-person SMD (2010-00667-300) would serve no purpose, given the LPA asserts operating the GRANDES EAUX in accordance with the requirements of this document that allows for a complement of two persons.

[71] However, she submits that Transport Canada has not received the assurance that the mechanical platform could operate adequately in winter conditions. She submits that the Minister is not satisfied that the two-person SMD (2009-00604-300) could ensure that the implicit requirements attached to that document were being met. Consequently, the Member's opinion is that the decision to clarify the requirements is the product of corrective action limiting a previously granted right of the two-person complement, and is therefore reviewable.

[72] The Applicant's representative contends that Transport Canada imposed the requirement for the vessel to be operated in suitable weather conditions with no prior discussion. He submits that the email exchange (Exhibit M-4) between the Transport Canada inspectors on August 10, 2010, supports this argument. The Member is of the opinion that the fact that there is no mention of weather conditions in these emails does not constitute evidence supporting this allegation.

[73] The Applicant's representative argues that the subjectivity of a weather assessment creates uncertainty for insurers, which could lead to unfortunate consequences for the organization. The Member agrees that a SMD must, as its title suggests, provide its holder with certainty as to the crew required.

[74] Mr. Bérubé testified that the GRANDES EAUX is not used from January to March, but acknowledged that no exemption request to exclude this period had been filed with Transport Canada. The testimonies suggest that, to provide the required certainty, the language of the document should be revised to reflect the vessel's actual area and period of operation.

[75] The Applicant's representative contends that the union representatives influenced Inspector Théorêt to change the GRANDES EAUX's minimum complement upwards. The representative submits that Transport Canada conducted its analysis without taking into account all of the safety equipment of the vessel and the approved complements for similar pilot boats elsewhere in Canada.

[76] For her part, the Minister's representative submits that the minimum complement analysis was done reasonably and without prejudice. She also contends that the inspectors consistently answered that a two-person complement requires a mechanical platform in working order and suitable weather conditions.

[77] In the Member's opinion, Inspector Théorêt is a credible witness. In light of his testimony and the documentary evidence filed, the Member agrees with the Minister's representative that the complement analysis for the GRANDES EAUX was impartial.

[78] The Applicant's representative contends that the intention to impose or clarify these requirements, such as the demonstration of the mechanical platform, is only a valid ground for cancellation under subsection 20(1) of the Act and sections 201 and 202 of the MPRs. This argument requires a narrow interpretation of subsection 20(1) of the Act.

[79] In this regard, the Member notes that each of the SMDs filed in evidence sets out [translation] "prescribed requirements or special conditions, if applicable" in the part of the document reserved for that purpose. However, the Member notes that none of the conditions set out is of concern to the operational status of equipment.

[80] Subsections 16(1) and (2) of the Act provide that the application for a Canadian maritime document must be made in the form and manner specified by the Minister. In addition, the Minister may require that whatever evidence or inspections he deems necessary be provided or conducted to establish that the requirements for the issuance of the documents have been met.

[81] Consequently, it seems to the Member that the condition requiring a demonstration is a valid ground for cancellation. However, the Member questions the merits of imposing a requirement that the Transport Canada inspectors themselves have testified is normally considered implicit.

[82] The Applicant's representative contends that the three-person SMD (2010-00667-300) must be declared invalid and that the two-person SMD (2009-00604-300) remains in effect. Nevertheless, such action is beyond the Tribunal's jurisdiction. Under paragraph 20.4(7)(b) of the Act, the Member may only confirm the Minister of Transport's decision or refer the matter back to the Minister for reconsideration.

[83] The Minister's representative submits that severe weather conditions must apply when analyzing the GRANDES EAUX's minimum complement, since its inspection certificate (Exhibit R-9) allows the vessel to be operated in ice, on near coastal voyage, Class 2.

[84] The Member notes that the LPA did not attempt to postpone the inspection of the platform by filing an application for variance from the regulations under subsection 8.4.5 of the DSIP.

[85] Under subsections 1.3 and 10.5 and section 15 of the GCIPV, Transport Canada must analyze the area and period of operation assigned to the vessel commensurate with its complement. In particular, section 15.7 allows for additional manning as a substitute for certain items of equipment. Consequently, the Member is of the opinion that the interpretation given by the Minister's representative is consistent with the MPRs.

[86] The Applicant's representative argues that the Act requires that a notice of cancellation set out cancellation grounds. He argues that Transport Canada had to provide the LPA with information to that effect. Inspector Charbonneau admitted that the demonstration to show that the mechanical platform worked was not a formal condition for the issuance of the two-person SMD (2009-00604-300). Just like Inspector Théorêt, he argued that this was an implicit condition.

[87] The only special conditions attached to the two-person SMD (2009-00604-300) concern the designation of a person to administer first aid, the training and familiarization of the crew and the limitation of the vessel's operations to pilot boarding. The vessel's area of operation is established as "near coastal voyage, Class 2". On the vessel's inspection certificate (Exhibit R-9), this limit is described, among others, as not more than 25 miles from shore.

[88] The validity conditions for the two-person SMD (2009-00604-300) are therefore not indicated on this document. It is the three-person SMD (2010-00667-300) that sets out the conditions that the Minister states were implicitly acknowledged at the meeting on October 28, 2009.

[89] However, the testimonies of the Transport Canada inspectors suggest that a future demonstration to show that the mechanical platform worked was a requirement for the issuance of the two-person SMD (2009-00604-300) and that this requirement was understood and accepted by the LPA. Consequently, the Member concludes that the first element, which is that the two-person SMD set out requirements relating to its issuance, has been established on a balance of probabilities.

[90] The applicant's representative submits that the Minister failed to provide the required 30-day notice and breached procedural fairness in cancelling the two-person SMD (2009-00604-300). Mr. Lanteigne testified that he was surprised when he was informed of the change to the minimum complement for the GRANDES EAUX without any prior communication.

[91] The Member agrees that the Minister failed to comply with the provisions to this effect set out in section 20.1 of the Act. Even if section 20.3 of the Act were to apply, the Member nevertheless notes that the manner in which the Minister informed the LPA of his concerns after the fact constitutes a breach of procedural fairness. Consequently, the Member concludes that the second element has not been established, on a balance of probabilities.

[92] The Minister's representative contends that the LPA failed to fulfill its obligation to demonstrate, some time after the meeting on October 28, 2009, that the mechanical platform operated to Transport Canada's satisfaction, as agreed.

[93] Mr. Bérubé testified that all of the equipment on board the vessel was in working order, as confirmed by his inspection certificate. He stated that Transport Canada could have inspected the vessel whenever it pleased. Under subsection 211(1) of the Act, an inspector may, in fact, ensure compliance with a provision by carrying out whatever inspections the inspector considers necessary.

[94] However, under section 106 of the Act and subsection 8.4.1 of the DSIP, the authorized representative must ensure that the required inspections are carried out and that the conditions indicated on the documents are satisfied. The Member is of the opinion that the handling of this case calls for shared liability.

[95] The testimonies showed that the LPA did not file an exemption request for the operation of the GRANDES EAUX in winter conditions, as it could have done. As a result, all of the equipment had to be approved for all of the conditions that this vessel was likely to encounter.

[96] Inspector Théorêt testified that he intended to observe the operation of the mechanical platform in winter conditions. However, the lack of specificity in the time frame given to the LPA to meet this requirement complicates establishing the LPA's failure to meet it. In addition, Inspector Théorêt stated that even if the mechanical platform had been in working order, he would have amended the two-person SMD (2009-00604-300) to clarify its contents.

[97] Nonetheless, Inspector Charbonneau testified that, on November 4, 2010, Lloyd's Register still had not approved the mechanical platform for winter use. This noncompliance is confirmed at item No. 15 (Exhibit M-8). The Member notes that, as of November 12, 2009, the noncompliance is described as follows:

[translation]

Means of embarkation to recover someone fallen overboard: in winter, an embarkation ladder must be available on board until it is shown that the person overboard retrieval system in place operates adequately in winter conditions.

[98] This documentary evidence applies specifically to the third element that the Minister must establish. Consequently, the Member concludes that the third element has been established on a balance of probabilities.

VII. DECISION

[99] The Minister of Transport has not established on a balance of probabilities that, under paragraph 20(1)(a) of the Canada Shipping Act, 2001, the Applicant, the Laurentian Pilotage Authority, has failed to meet the requirements for the issuance of a document. The Member refers the matter back to the Minister for reconsideration.

January 19, 2012

Yves Villemaire

Member