Decisions

TATC File No. MP-0152-38
MoT File No. P20111102-505-00628

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

M/V Alaskan, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canada Shipping Act, 2001, S.C. 2001, c. 26; section 187


Review Determination
Peter Bernard


Decision: October 22, 2012

Citation: M/V Alaskan v. Canada (Minister of Transport), 2012 TATCE 29 (Review)

Heard in Nanaimo, British Columbia, on June 1, 2012

Held: The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, M/V Alaskan, violated section 187 of the Canada Shipping Act, 2001. The penalty of $6 000 is dismissed.

I. BACKGROUND

[1] On November 7, 2011, the Minister of Transport ("Minister") issued a Notice of Violation ("Notice") to Sjoerd van Kleef as Authorized Representative of the M/V  Alaskan, a fishing vessel registered at the Port of New Westminster, British Columbia, for a violation of section 187 of the Canada Shipping Act, 2001, S.C. 2001, c. 26 ("Act").

[2] The violation described in Schedule "A" to the Notice is as follows:

On or about the 19th of October, at or near Thetis Island, in the province of British Columbia, the Alaskan (O.N. 323595) discharged a prescribed pollutant, thereby contravening section 187 of the Canada Shipping Act, 2001.

[3] A penalty of $6 000 was assessed by the Minister, pursuant to the Administrative Monetary Penalties Regulations, SOR/2008-97 ("AMPRs").

[4] On November 16, 2011, Mr. van Kleef requested a review of the administrative monetary penalty by the Transportation Appeal Tribunal of Canada ("Tribunal").

[5] The matter came before me for a Review Hearing on April 26, 2012, but, on a motion from Mr. van Kleef, the Review Hearing was adjourned and rescheduled to June 1, 2012. The applicant stated the adjournment was required due to the absence of a witness whose evidence was said to be significant. The Minister agreed that the adjournment should be allowed.

II. STATUTES AND REGULATIONS AND POLICIES

[6] Provisions 185, 186(1), 187, 190(1)(a) and 191(1)(a) of the Act provide as follows:

185. The definitions in this section apply in this Part.

"discharge" means a discharge of a pollutant that directly or indirectly results in the pollutant entering waters, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.

186.(1) Subject to subsection (2), this Part applies in respect of vessels in Canadian waters or waters in the exclusive economic zone of Canada.

187. No person or vessel shall discharge a prescribed pollutant, except in accordance with the regulations made under this Part or a permit granted under Division 3 of Part 7 of the Canadian Environmental Protection Act, 1999.

190.(1) The Governor in Council may, on the recommendation of the Minister, make regulations respecting the protection of the marine environment, including regulations

(a) prescribing pollutants for the purpose of sections 187 and 189 and respecting the circumstances in which such pollutants may be discharged;

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

(a) section 187 (discharge of a pollutant);

[7] Paragraph 4(a) of the Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals, SOR/2007-86, ("RPP"), in force under the Act at the time of the incident, provides as follows:

4. For the purposes of Part XV of the Act, the following substances are prescribed to be pollutants:

(a) oil and any oily mixture;

[8] Subsections 2(1) and (2) of the Administrative Monetary Penalties Regulations, SOR/2008‑97 ("AMPRs"), made under the Act, provide as follows:

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

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

[9] The Schedule to the AMPRs provides a penalty range of $1 250 to $25 000 for a violation of section 187 of the Act.

[10] The policy framework described under "Penalty Ranges" in the Regulatory Impact Analysis Statement ("RIAS") that accompanies the AMPRs, Canada Gazette, Part II, Volume 142, Number 8 on page 625, provides that a violation of section 187 of the Act is regarded as a high-gravity violation and, accordingly, the minimum penalty payable by a vessel for a first violation is $6 000.

III. EVIDENCE

A. Minister

(1) Ralph Maurice Hilchie

[11] Ralph Maurice Hilchie was presented as an expert in the identification of oil on the surface of water observed from an aircraft. The Minister submitted that Mr. Hilchie would be able to give a professional opinion that the substance detected was oil or an oily substance.

[12] Mr. Hilchie joined the Federal Government in 1964 as a Radio Officer and then as a Meteorological Technician. In 1970, he assumed a role with the Canadian Ice Service dealing with ice recognizance from aircraft in the arctic and eastern Canada.

[13] The witness described the use of Radarsat imagery and Side-Looking Aerial Radar ("SLAR"), indicating that they are tools providing for the mapping of ice conditions.

[14] In 2006, Mr. Hilchie transferred to the Maritime Aerial Recognizance Team working on the east coast of Canada for two years on pollution overflight missions. In 2009, Mr. Hilchie then moved to Vancouver in the same line of work, which involves flying over shipping routes to determine if oil has been spilled into the ocean. Each aircraft has two technologists: one carries out visual observation; and the second utilizes SLAR and a pod containing an assortment of high-resolution cameras.

[15] Based on his lengthy experience, I accepted Mr. Hilchie as an expert in interpreting visual observations onboard an aircraft, as well as in the equipment described.

[16] Mr. Hilchie described the flight on October 19, 2011. The aircraft flew out to the west coast of Vancouver Island and while returning, crossed over Telegraph Harbour on Thetis Island. At that point, the visual observer saw an area below which appeared to contain hydrocarbons on the surface of the water. Using the cameras, Mr. Hilchie captured the visual elements, which he stated were significant in determining whether the substance on the surface of the water was, in fact, hydrocarbon.

[17] Mr. Hilchie identified a number of photographs of the area of Telegraph Harbour (Exhibit M‑1) showing vessels moving within a patch of material exhibiting various colours and which Mr. Hilchie testified was a stream of oil. The aircraft descended to view the situation from a closer position. More photographs were taken, which Mr. Hilchie identified as showing a patch of a "rainbow pattern" or "iridescence", turning into a stream leading to the marina where the M/V Alaskan was berthed.

[18] Finally, Mr. Hilchie described his observations, supported by the photographs, of different colours in the spill area, which indicate the thickness of the oil on the surface. The observations enabled his team to conclude that approximately 6.2 litres of oil had been put into the water.

[19] Thereafter, Mr. Hilchie described the efforts of those onboard the aircraft to determine the source of the oil. In the first instance, he suggested that certain vessels observed within the area of the oil should be eliminated as potential sources of the discharge.

[20] Mr. Hilchie argued that, "any vessel that is basically within the slick, and if that oil slick is entirely surrounding them, is not the source". As a general practice, he looks to see if the slick leads to a certain position and accordingly, follows the slick to assist in reaching a conclusion with respect to the source of the oil.

[21] Referring to close-up photographs taken from the aircraft at a lower level (Exhibit M‑1), Mr. Hilchie testified that one can see oil between the M/V Alaskan and the dock, and that it appeared to be coming from the bow of the M/V Alaskan. He also stated that some oil was detected off the port and starboard sides of the vessel and that "we could not determine exactly a precise source".

[22] While referring to one of the photographs on Exhibit M-1, Mr. Hilchie noted that the marina manager could be seen on the dock near the M/V Alaskan. The co‑pilot radioed the marina and spoke to the manager who said that he had gone to that position as a result of a request by the pilot of the aircraft.

[23] Under cross-examination, Mr. Hilchie stated that the manager advised the aircraft crew that he "could not see where the oil was coming from. He could not see oil around the vessel". Mr. Hilchie tendered the explanation that it is difficult to see oil on the water when you are looking at a thin sheen up close.

[24] Finally, Mr. Hilchie stated that "[t]he only thing that led us to the Alaskan was the stream of oil that always came from the vicinity of the Alaskan".

(2) Patrick Lwyn

[25] Patrick Lwyn is a Senior Marine Inspector for Transport Canada. He was asked by his superior to conduct a follow-up investigation by speaking with Nicole Chiasson on October 28, 2011. Mr. Lwyn identified the Certificate of Registry for M/V Alaskan (Exhibit M‑2) which shows Mr. van Kleef and Ms. Chiasson as joint owners.

[26] Mr. Lwyn spoke to Ms. Chiasson by telephone, understanding her to say that she had changed the oil in the vessel on October 19, 2011, and suggesting that some of the oil had spilled into the bilge.

B. Applicant

(1) Rob Hunter

[27] Mr. Hunter testified that he lives onboard his vessel at another marina in Telegraph Harbour, and that during his time at that marina, he observed quite a few instances of deposits of oil into the harbour. He suggested that the "general populace of this area are really not that diligent on a lot of their issues with pollution and how they get rid of waste oils…"

[28] Mr. Hunter suggested that another vessel in the marina where the M/V Alaskan was berthed had been recently acquired by a new owner who had been doing a general clean-up and disposal of unwanted items. He suggested the owner and those onboard had placed these various items and materials on deck and speculated that a container of oil might have gone over the side into the harbour.

[29] Under cross-examination, Mr. Hunter stated that he was on the M/V Alaskan later in the night of October 19, 2011, and he could not see where the oil would have come from. This led him to consider that it had to be from a source other than the M/V Alaskan.

(2) Nicole Chiasson

[30] Nicole Chiasson testified that she went onboard the M/V Alaskan with Mr. Hunter on October 20, 2011. She observed Mr. Hunter making efforts to determine if the oil was coming from the M/V Alaskan. He went into the engine room and into the bilges, but could not find any leaks or sources of discharged oil.

[31] Ms. Chiasson also took photographs of the bilge (Exhibit A‑1), which were tendered as evidence of the lack of oil in that space. Finally, Ms. Chiasson identified photographs (Exhibit A‑2) and a video (Exhibit A‑3) of a spill in Telegraph Harbour, which she had taken on May 9, 2012, in support of the proposition that there is oil or another similar pollutant on the surface of the water in Telegraph Harbour from time to time.

[32] Ms. Chiasson testified that she did not change the oil on October 19, 2011, as Mr. Lwyn had testified. She said that she did not understand what Mr. Lwyn was asking when he called. She thought he must have misunderstood what she said about the oil being changed by Mr. van Kleef when he winterized the vessel sometime prior to October 19, 2011.

IV. SUBMISSIONS

A. Minister

[33] The Minister submitted that the following required elements had been established, on a balance of probabilities:

  1. contrary to section 187 of the Act, a prescribed pollutant had been discharged from the M/V Alaskan on October 19, 2011;
  2. the material in the water was oil or an oily mixture, which was a prescribed pollutant pursuant to paragraph 4(a) of the RPP made under the Act.

B. Applicant

[34] Mr. van Kleef argued that there was no evidence of any discharge from the vessel. He pointed to the evidence of Mr. Hunter and Ms. Chiasson, who could not find any leak when inspecting the vessel on the day following the detection of oil in the harbour.

V. ANALYSIS

[35] Although I would have preferred more substantial evidence, including sample testing and specific scientific observation of properties, I am satisfied from the evidence, particularly that of Mr. Hilchie, that the material on the water of Telegraph Harbour on October 19, 2011, was a hydrocarbon (oil or an oily mixture) and, therefore, was a prescribed pollutant.

[36] However, I am not persuaded that the evidence demonstrates, on a balance of probabilities, that the pollutant was discharged from the M/V Alaskan. There are, in my view, other potential sources.

[37] The only evidence put forward by the Minister suggesting that the M/V Alaskan was the source of the discharge did not go beyond the proposition stated by Mr. Hilchie that the only factor suggesting the oil came from the M/V Alaskan, is that the trail led from the larger area of the oil to the end of the pier where the M/V Alaskan was berthed, as first in a line of a number of other vessels. The Minister has not shown that it is more likely than not that the oil was discharged by the M/V Alaskan rather than any other vessel in line.

[38] Furthermore, Mr. Lwyn's evidence was difficult to follow at times and was contradicted by the evidence of Ms. Chiasson. I accept that Mr. Lwyn misunderstood what Ms. Chiasson said to him. Consequently, I do not accord this evidence any weight.

VI. DETERMINATION

[39] The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, M/V Alaskan, violated section 187 of the Canada Shipping Act, 2001. The penalty of $6 000 is dismissed.

October 22, 2012

Peter G. Bernard

Member