Decisions

TATC File No. MP-0101-33
MoT File No. P20101209-503-00254

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Earl Stoessiger, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
J. Richard W. Hall


Decision: October 29, 2012

Citation: Stoessiger v. Canada (Minister of Transport), 2012 TATCE 35 (Review)

Heard at Masset, British Columbia, on August 3, 2012

Held: The Minister has proven, on a balance of probabilities, that the Applicant contravened section 187 of the Canada Shipping Act, 2001. Consequently, the penalty of $1 250 is confirmed.

The total amount of $1 250 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this Determination.

BACKGROUND

[1] The Applicant, Earl Stoessiger, received a Notice of Violation ("Notice") dated December 23, 2010, from the Minister of Transport ("Minister") which alleged that on or about August 12, 2010, the Applicant discharged a prescribed pollutant in contravention of section 187 of the Canada Shipping Act, 2001, S.C. 2001, c. 26 (Act). Consequently, he was assigned a penalty of $1 250.  

[2] Schedule A to the Notice reads as follows:

On or about the 12th of August 2010, at or near the village of Masset, in the province of British Columbia, Earl Stoessiger discharged a prescribed pollutant, thereby contravening section 187 of the Canada Shipping Act, 2001.

[3] The Applicant applied to the Transportation Appeal Tribunal of Canada ("Tribunal") for a review of the Minister's decision. The Review Hearing occurred at Masset, British Columbia, on August 3, 2012.

I. STATUTES

[4] Section 187 of the Act reads as follows:

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.

II.  EVIDENCE

A. Minister

(1) Shaun Peacock

[5] Shawn Peacock was working as a Maintenance Man at the fuel dock of North Arm Transportation Ltd. when the alleged incident occurred on August 12, 2010.

[6] Mr. Peacock testified that when the Applicant's vessel, the Iron Maiden, came to the dock to get fuel, he "landed the Iron Maiden, tied up the ropes, and started the fuel pump…and handed [the Applicant] the hose." Mr. Peacock stated that during fueling operations he provides the fuel, but that it is the crew who actually fuels the boat. He notes that his job is to regulate how much fuel goes through the hose to the boat.

[7] Mr. Peacock testified that it was the Captain of the Iron Maiden who was in charge of the fuel line to the vessel. He identified the Applicant as the Captain of the vessel at the time of the incident.

[8] Mr. Peacock testified that after he turned on the pump, he sought reassurance from the Applicant that everything was okay. After the Applicant confirmed that everything was okay, Mr. Peacock began walking up and down the dock looking at the water. According to Mr. Peacock, it was while he was walking by the dock that he noticed fuel in the water.

[9] Mr. Peacock testified that the fuel was coming from the starboard side of the boat, the same side on which the Applicant was fueling the vessel.

[10] Mr. Peacock testified that once he noticed fuel in the water, he alerted the personnel on the boat, and ran to shut the valve off. He noted that he could see people inside the cabin at this point, after which he saw "shapes rushing out the door on the starboard side."

[11] With regard to the fueling system, Mr. Peacock noted that the fuel nozzles are set up so that the nozzle must be physically held during fueling, and once a person's hands are off the nozzle, no more fuel will come through the hose.

[12] When asked how the fuel would have escaped into the water with someone physically holding the nozzle, Mr. Peacock suggested that a person could jam open the nozzle with the fuel cap or some other object. He suggested that the hose must have been unmanned, stating "that would be the only explanation because as you're fueling, if you're manning your hose, as soon as the fuel comes out your automatic reaction is to let go of that trigger because you see fuel just spraying up all around you."

B. Applicant

[13] By email dated June 4, 2012, the Applicant advised the Tribunal that because he did not have a licenced commercial salmon fishing vessel to take to Queen Charlotte, B.C., last summer, he could not afford to fly to Masset to defend his case. The Tribunal advised him that as the alleged incident took place in Masset and the witness for Transport Canada was also from Masset, the Review Hearing would occur there, in accordance with Tribunal policy.

[14] The Applicant did not appear at the Review Hearing, and sent a letter explaining his absence to the attention of Frank Ritchie through the Masset Post Office. This letter was hand-delivered to Mr. Ritchie from a representative of the Village of Masset Office on the morning of the Review Hearing. Through contact with the Applicant, the Tribunal Registry confirmed that he was not able to attend. Consequently, there was no one present at the Review Hearing to provide evidence or arguments on his behalf.

III. ARGUMENTS

A. Minister

(1) Proving the Allegation

[15] The Minister notes that the Applicant has been charged with a strict liability offence. He states that there is no doubt that there was fuel in the water and that the Applicant was the Master in charge of the vessel. He further notes that it is likely that the substance in the water was fuel, and that this fuel came from the Iron Maiden. The Minister argues that as the Master is responsible for fueling operations on board the vessel, the Applicant is therefore responsible for the fuel in the water.

[16] While the Minister submits that the exact facts of what occurred are not clear, he notes that "we can only surmise that one way or another [the Applicant] disabled the [nozzle], walked away and that's how come we ended up with fuel in the water."

(2) Sanction

[17] In discussing the sanction, the Minister notes that $1 250 is the minimum penalty that is assessable under the Administrative Monetary Penalty Regulations (AMPRs). The Minister did not feel it was appropriate to assess a higher penalty in this instance because this was a first offence for a small operation, and the Minister feels that the Applicant "will have learned his lesson and take proper precautions in the future."

(3) Costs

[18] The Minister requests costs, as he argues that the Applicant "could have obviated the necessity for all of us to travel to Masset" by advising the Review Hearing participants that he would be unavailable for the Review Hearing. He contends that by so doing, the Applicant would have "saved the government a considerable sum of money."

B. Applicant

[19] The Applicant was absent from the Review Hearing and, as previously noted, no one was present at the Review Hearing to provide arguments on his behalf.

IV.  ANALYSIS

(1) Proving the Offence

[20] In order to prove that the Applicant contravened section 187 of the Act, the Minister must prove, on a balance of probabilities, that the Applicant discharged a prescribed pollutant.

[21] Based on the Minister's evidence, including the eye-witness evidence given by Mr. Peacock, I am convinced, on a balance of probabilities, that the substance discharged into the water was a prescribed pollutant.

[22] The Minister has demonstrated that the Applicant was the person responsible for the vessel and for the fueling operations on board the Iron Maiden.

[23] While we are not sure exactly how the fuel spill occurred, it is not the Minister's burden to prove the details of the spill. Rather, it is the Minister's burden to prove that a spill occurred for which the Applicant was responsible. Based on the eye-witness testimony and the evidence before the Tribunal, there is little doubt that the Applicant is the person responsible for the discharge of the pollutant. Consequently, I find that the Minister has proven that the Applicant contravened section 187 of the Act, as alleged.

(2) Sanction

[24] The penalty assigned to the Applicant for contravening section 187 of the Act was assessed by the Minister at $1 250. As noted by the Minister, this is the minimum penalty for this offence pursuant to the AMPRs.

(3) Costs

[25] It is the Minister's burden to prove an allegation under section 187 of the Act. While it is often in an Applicant's best interest to be present at a Review Hearing, a document holder can be present at a Review Hearing but is not compelled to testify. The Tribunal, therefore, will not award costs in the event that the document holder does not appear at a Review Hearing.

V.  DETERMINATION

[26] The Minister has proven, on a balance of probabilities, that the Applicant contravened section 187 of the Canada Shipping Act, 2001. Consequently, the penalty of $1 250 is confirmed.

October 29, 2012

J. Richard W. Hall

Chairperson


Appeal decision
Yves Villemaire, Brad M. Caldwell, David G. Henley


Decision: January 2, 2014

Citation: Stoessiger v. Canada (Minister of Transport), 2014 TATCE 1 (Appeal)

Heard in: Kamloops, British Columbia, on July 25, 2013

APPEAL DECISION AND REASONS

Held: The Appeal Panel concludes that the Appellant was not entitled to an appeal by virtue of having failed to attend the Review Hearing without sufficient reason to justify his absence. However, even if the Appellant had established his right to appeal, he nevertheless failed to prove his grounds of appeal. As such, the Review Member's Determination is confirmed and the monetary penalty of $ 1 250 is upheld.

The total amount of $1 250 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this Decision.

I. BACKGROUND

[1] The Minister of Transport (Minister) sent the Appellant, Earl Stoessiger, a Notice of Violation (Notice) dated December 23, 2010, alleging that the Appellant violated section 187 of the Canada Shipping Act, 2001, S.C. 2001, c. 26 (Act).

[2] The details of the alleged violation and the assessed penalty are found in Schedule A to the Notice, which reads as follows:

No

Violation

Penalty

1

On or about the 12th of August 2010, at or near the village of Masset, in the province of British Columbia, Earl Stoessiger discharged a prescribed pollutant, thereby contravening section 187 of the Canada Shipping Act, 2001.

$1,250

[3] The Appellant requested a Review Hearing with the Transportation Appeal Tribunal of Canada (Tribunal), which occurred on August 3, 2012, in Masset, British Columbia (B.C.) before J. Richard W. Hall (the Review Member). In a Determination dated October 29, 2012, the Review Member determined that the Minister had proven the violation on the balance of probabilities, confirming the penalty of $1 250.

[4] The Appellant provided notice of his intention to appeal the Determination by way of a letter dated November 25, 2012, which was received by the Tribunal on November 30, 2012 (the Appeal Notice).

II. STATUTES

[5] Section 187 and subsection 232.2(2) of the Act provide as follows:

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.

[…]

232.2.(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

[6] Section 14 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, (TATC Act) reads as follows:

14. An appeal shall be on the merits based on the record of the proceedings before the member from whose determination the appeal is taken, but the appeal panel shall allow oral argument and, if it considers it necessary for the purposes of the appeal, shall hear evidence not previously available.

III. REVIEW DETERMINATION

[7] The Appellant did not appear at the Review Hearing and accordingly, no evidence or arguments were presented on his behalf. The Minister, however, was present and adduced evidence and arguments.

[8] Based upon the Minister's evidence, the Review Member found that, on the balance of probabilities, the substance discharged into the water was a prescribed pollutant. The Review Member also found that the Minister had demonstrated that the Appellant was the person responsible for the vessel Iron Maiden (the Vessel) and the fueling operations on board the Vessel.

[9] The Review Member noted that the cause of the spill remained uncertain, but found that the Minister's burden was only to prove that a spill occurred for which the Appellant was responsible. His conclusion at paragraph [23] of his Determination was that:

Based on the eye-witness testimony and the evidence before the Tribunal, there is little doubt that the Applicant is the person responsible for the discharge of the pollutant.

[10] The Review Member confirmed the penalty assessed by the Minister without comment, noting the Minister's submission that this was the minimum penalty for this type of offence under the Administrative Monetary Penalties Regulations, SOR/2008‑97 (AMPRs).

IV. GROUNDS FOR APPEAL

[11] The Appeal Notice did not expressly outline the Appellant's grounds for appeal, but did contain the following statements and questions:

This letter concerns the Review Hearing conducted in Masset, BC on August 3, 2012 in my absence. I am requesting an appeal of the decision.

I have read Shaun Peacock's testimony and there are errors.

Did you receive the registered mail that I sent prior to the hearing? I requested that Shaun be asked several pertinent questions which could assist my defence in this particular case. The literature/court proceedings that I received only revealed Shaun's testimony of the alleged incident.

In my registered mail, I presented valuable information which could support my case, including hand written letters from other persons who have encountered similar problems at the fuel dock in Masset, as well as technical information that I acquired from a previous employee.

Was Shaun confronted with these questions? I would appreciate knowing exactly what he was asked. Will you please contact me with this information asap?

[12] The Appeal Notice was addressed to the Minister's representative, but was also sent to the Tribunal, and was received by the Tribunal on November 30, 2012.

[13] As a preliminary matter at the Appeal Hearing, the Minister noted that the Appellant's grounds for appeal were not made clear in the Appeal Notice. The Minister was quite correct in this respect. Subsection 18(2) of the Transportation Appeal Tribunal of Canada Rules, SOR/93‑346 (TATC Rules) specifies that:

(2) A request for appeal shall include a concise statement of the grounds on which the appeal is based.

[14] The Appeal Notice did not clearly provide a concise statement of the grounds on which the appeal was based. Therefore, during the Appeal Hearing, the Tribunal sought clarification from the Appellant on his grounds for appeal. After some discussion and questioning, the Appellant's grounds for appeal seem to be as follows:

  1. That he was denied procedural fairness during the Review Hearing when the Review Member did not take into account the contents of a July 23, 2012 letter sent from the Appellant to the Minister's representative, and because the Minister's representative did not present the information in the Appellant's letter at the Review Hearing; and
  2. That the Appellant was seeking the right to submit this information at the Appeal Hearing.

V. PRELIMINARY MATTERS

A. Entitlement to an Appeal Hearing

[15] As it was evident that the Appellant did not appear at the Review Hearing, the Tribunal asked the parties to make submissions on subsection 232.2(2) of the Act, which provides that a party that does not appear at a review hearing is not entitled to appeal the determination, unless they establish that there was sufficient reason to justify their absence. During the Appeal Hearing this was addressed as a preliminary matter.

[16] The Appellant submitted that he did not have a fishing vessel available at the time, so he could not use that mode of transportation to attend the Review Hearing. He stated that the cost of attending the Review Hearing was prohibitive for his financial circumstances. The Appellant gave no evidence as to his financial circumstances at the time. He reported that he had asked the Tribunal to move the Review Hearing to a location closer to him, but that his request was refused because the incident had occurred in Masset and the witnesses were located in Masset.

[17] The Minister did not take any position on whether the Appellant was entitled to appeal the Review Determination, leaving the finding of whether his absence was justified to the Tribunal's discretion. The Minister did note that the Review Hearing was originally scheduled for October 6, 2011, and was rescheduled to August 3, 2012, at the request of the Appellant. The Minister also acknowledged that the Appellant sent a letter dated July 23, 2012, which stated that the Appellant was unable to appear in Masset. However, the Minister stated that the letter was not sent to the correct person.

[18] In reply, the Appellant stated that he sent the letter by special delivery from the post office in Merritt, B.C., to the Minister's representative, Frank Ritchie, at the address of the courthouse in Masset. The Appellant stated that he believes he also sent the letter to the Tribunal. When asked by the Appeal Panel what he expected would have been done with the letter, the Appellant stated that the letter constituted his defence. He seemed to have expected that the Minister's representative would have presented the contents of the letter on his behalf during the Review Hearing.

[19] After hearing submissions on the matter, the Appeal Panel reserved its decision on this issue and proceeded with the Appeal Hearing, subject to the outcome of its decision. The substance of this decision is presented below in the Analysis section.

B. Introduction of Evidence during the Appeal Hearing

[20] As the substantive part of the Appeal Hearing commenced, it became apparent that there was another preliminary issue. The Appellant made it clear that he intended to present evidence that he did not present during the Review Hearing. The Appeal Panel reminded the parties of section 14 of the TATC Act, which provides that an appeal shall be on the merits based on the record of proceedings before the member from whose determination the appeal is taken, though the Tribunal may hear evidence it considers necessary for the purposes of the appeal where such evidence was not previously available. The Appeal Panel heard arguments from the parties as to whether the Appellant should be permitted to adduce evidence.

[21] The Minister argued that the Appellant had the opportunity to present his evidence on two occasions. The first was the originally scheduled hearing on October 6, 2011, and the second was one year later at the Review Hearing, held on August 3, 2012. The Minister emphasized that the original hearing date was rescheduled at the request of the Appellant. The Minister's position is that an applicant is not required to be present at a review hearing, but that by not attending, the applicant is choosing not to present evidence. The Minister argued that an appeal hearing is not intended to be a hearing de novo, or a second opportunity for a review hearing. The Minister noted that the Appellant corresponded with the Tribunal prior to the Review Hearing. On that basis, the Minister stated that the Appellant had the address of the Tribunal, and that his prior correspondence indicated that he knew to whom to address correspondence relating to hearings. The Minister stated that it was not clear why the Appellant sent his letter to the courthouse in Masset. In any event, the Minister argued, the Minister's representative could not present arguments or evidence on behalf of the Appellant, which seemed to be what the Appellant wanted in his letter received on the day of the Review Hearing.

[22] The Appellant stated that he was unaware of the procedural requirements, and that if he had known, he would have followed proper procedures. He stated that as a fisherman, he knows little about legal procedures and requirements. He confirmed that he did not discuss the procedures for a Review Hearing with a lawyer because he did not “think it was such a big deal”.

[23] In reply to the Appellant's submissions, the Minister noted that when a request for review is made, the Tribunal sends the applicant a Guide for Applicants. The Minister noted that the Appellant's Request for Review was sent on March 21, 2011. The Minister also noted that the Guide for Applicants contains information which outlines review hearing procedures. When asked by the Appeal Panel if he had received a Guide for Applicants, the Appellant could not recall, but stated that he probably did. The Appellant acknowledged that after making a request by email to the Tribunal on June 4, 2012 to change the location of the Review Hearing from Masset on the ground of financial hardship, the Tribunal denied his request to change the location.

[24] The Appeal Panel also reserved its decision on the ability of the Appellant to present evidence at the Appeal Hearing. The Appeal Panel then proceeded with the Appeal Hearing and allowed the Appellant to give evidence.

VI. ARGUMENTS

A. Appellant

[25] The Appellant's explanation as to why his July 23, 2012 letter should have been admitted at the Review Hearing was not clear. He seemed to believe that by providing the letter, its contents would have been admissible during the Review Hearing. He submitted that Mr. Ritchie, the Minister's representative, should have asked the Minister's witness, Shaun Peacock, the questions in the Appellant's July 23, 2012 letter. However, the Appellant provided no basis for why the Minister should have done so.

[26] The Appellant then proceeded to give his version of events, which for completeness is summarized in this decision. The Appellant's primary position was that the evidence given by Mr. Peacock at the Review Hearing was incorrect or untruthful.

[27] The Appellant stated that the testimony by Mr. Peacock that he went up the stair and switched tanks on the barge could not be accurate because Mr. Peacock did not leave the dock. Rather, the Appellant noted that a person named Natanis Hageman switched the tanks on the barge. The Appellant submitted that this demonstrates that Mr. Peacock's testimony was inaccurate.

[28] The Appellant then described the refueling operation. He stated that he was unable to measure the contents of the tanks while he was at sea because of an anti-theft device installed in the line. For that reason, he directed Mr. Peacock to send fuel at a rate of three-quarters of a litre per second, noting that the full speed of filling is five litres per second. After five minutes he asked Mr. Peacock how much fuel he had taken, and testified that Mr. Peacock stated that he had taken 200 litres.

[29] The Appellant stated that his deckhand, Kenny Davis, was in the stern of the Vessel and was unable to get the bung open for the freshwater tank. The Appellant left the starboard side of the intake of the fuel tank and went to the wheelhouse with Mr. Davis to get a wrench. While in the wheelhouse, the Appellant heard Mr. Peacock shouting that there was diesel going over the side of the Vessel. The Appellant stated that he had been gone from the starboard side of the Vessel for no more than a minute. He stated that he did not understand how this could have happened because the fuel tank was not full at the time. He testified that after they resumed refueling at a later time the Vessel took another 420 litres in that tank. The Appellant testified that he saw Mr. Peacock with his arm on the metre and argued that Mr. Peacock may have bumped the metre, though he did not see such a thing occur. The Appellant submitted that this was the only reasonable explanation given that fuel had been coming into the tank at a “trickle” when he left the intake pipe. He testified later that the fuel valve is easily adjusted for flow and could have been accidentally bumped, increasing the flow.

[30] After the spill occurred, the Appellant indicated that he and his deckhand rushed out onto the dock. Mr. Peacock handed him an absorbent pad, which was the only one at the dock. The Appellant argued that Mr. Peacock should have had more absorbent pads at the dock location. He argued that the spread of the fuel could have been more quickly contained had there been more absorbent pads and a floating boom readily available at the dock.

[31] The Appellant testified that he estimated that when the Vessel arrived it could take 1 200 to 1 400 litres of fuel. He stated that his calculation was not based upon measurement but upon his experience of the fuel consumption of the Vessel, given the time and distance travelled.

[32] Essentially, the Appellant argued that the fuel spill could not have been caused by him because the Vessel's fuel tank was not full when the spill occurred. He argued that the most reasonable explanation was that Mr. Peacock accidently bumped the full valve, increasing the flow of fuel to the Vessel.

[33] The Minister was afforded an opportunity to cross-examine the Appellant, with the understanding that the Appeal Panel was reserving its decision on whether any new evidence would be admitted. During cross-examination, the Appellant confirmed that he was gone from the fuel intake for no more than a minute. He also stated that the anti-theft device in the fuel line may have affected the ability to take fuel at a higher rate. The Appellant confirmed that he had no absorbent pads in the Vessel.

B. Minister

[34] The Minister reiterated that the Appellant was given two opportunities to present evidence during a review hearing. The Minister noted that the Review Member decided to proceed with the Review Hearing in the Appellant's absence, and that the Minister presented evidence during the Review Hearing, which was assessed by the Review Member.

[35] The Minister cited Dunsmuir v. New Brunswick, 2008 SCC 9, for the proposition that questions of fact attract a standard of review of reasonableness. The Minister also cited Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17, for the proposition that findings of fact and credibility are entitled to considerable deference by an appeal panel, as well as S.S. Oceanic (The) v. Canada (Minister of Transport), 2012 TATCE 39, TATC file no.: MP‑0036‑38 (Appeal), for the proposition that the appeal panel should not interfere with the review member's findings of fact as long as they are reasonable based on the evidence before him. The Minister submitted that the relevant issues were questions of fact, and that the applicable standard of review is that of reasonableness. The Minister argued that as long as the findings of the Review Member were reasonable based upon the evidence before him, his determination should stand.

[36] As to the Appellant's position that the Minister ought to have addressed the contents of the Appellant's July 23, 2012 letter during the Review Hearing, the Minister seemed to submit that this issue was also one of fact, rather than a question of law. The Minister submits that issues of fairness still reflect a question of fact. In this respect, the Minister argued that what actually occurred on the day of the Review Hearing is a question of fact. The Minister submits that the Appellant's expectation that the Minister would present the Appellant's defence and then cross‑examine his own witness was unrealistic. The Minister acknowledged that the events surrounding the July 23, 2012 letter were unfortunate, noting that the letter should have been sent to the Tribunal.

[37] The Minister referred to paragraphs 58 and 59 of R. v. Schwartz, [1988] 2 S.C.R. 443, for the following excerpts:

Before any document can be admitted into evidence there are two obstacles it must pass. First, it must be authenticated in some way by the party who wishes to rely on it. This authentication requires testimony by some witness; a document cannot simply be placed on the bench in front of the judge. Second, if the document is to be admitted as evidence of the truth of the statements it contains, it must be shown to fall within one of the exceptions to the hearsay rule…

One of the hallmarks of the common law of evidence is that it relies on witnesses as the means by which evidence is produced in court. As a general rule, nothing can be admitted as evidence before the court unless it is vouched for viva voce by a witness. Even real evidence, which exists independently of any statement by any witness, cannot be considered by the court unless a witness identifies it and establishes its connection to the events under consideration.

[38] On the strength of these comments by the Supreme Court, the Minister argued that the July 23, 2012 letter was not admissible because it could not have been tested. To allow the Appellant to then introduce it at the appeal level disadvantages the Minister because it could not be put to her witness.

[39] The Minister cited subsection 232.1(3) of the Act:

(3) The burden is on the Minister to establish that the person or vessel committed the violation referred to in the notice. The person is not required, and must not be compelled, to give any evidence or testimony in the matter.

[40] The Minister stated that the Appellant chose not to be present at the Review Hearing and that by that decision, opted not to give evidence. Instead, the manner in which the Appellant attempted to introduce evidence at the Review Hearing was unconventional, and the evidence is therefore inadmissible.

[41] The Minister referred to paragraph 49(d) of the Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals, SOR/2007-86 (Pollution Regulations), since they were in force at the time of the violation, noting that this paragraph requires that:

(d) the person who is on duty on the ship in respect of the transfer operation is fully conversant with the communication signals, maintains watch over the ship's tanks to ensure that they do not overflow and maintains continuous communication with that person's counterpart at the loading facility or the unloading facility or on board the other ship, as the case may be;

[42] The Minister submitted that during his submissions, the Appellant confirmed that he was away from the fuelling operation for a period of time and therefore not in compliance with the requirements of the regulation.

[43] Finally, the Minister requested a dismissal of the appeal.

C. Appellant's Response

[44] The Appellant's response was brief, disclaiming any knowledge of the cited legislation or cases. He reiterated his belief that the spill was the result of an accident or misstep at the source of the fuel.

VII. ANALYSIS

A. Standard of Review

[45] In Billings, the Federal Court considered the appropriate standard of review for decisions of tribunals, in the context of an appeal from this Tribunal. The Federal Court determined that an appeal panel owes considerable deference to the review member when conducting a review of questions of fact and credibility. To this end, this Appeal Panel will uphold determinations of the Review Member so long as they are reasonable. However, the Federal Court has stated that no deference is due to the review member on matters of law, and that an appeal panel may make its own findings. For matters of law, the standard of review for a review member's determination is correctness. See also the recent case of Canada (Attorney General) v. Annon, 2013 FC 5, where the Federal Court notes from paragraphs 14 to 16 that for matters of mixed fact and law, the appeal panel must show deference to the findings of the review member.

[46] This case raises issues of fairness and natural justice. At paragraph 65 of Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, the Supreme Court is clear that matters of procedural fairness and natural justice are legal issues which are reviewable without deference. In such cases, the standard of review is correctness.

B. Entitlement to an Appeal Hearing

[47] The July 23, 2012 letter referred to by the parties did not form part of the record of the Review Hearing and was not available to the Appeal Panel during the Appeal Hearing. The Review Determination makes no mention of this letter. A review of the transcript for the Review Hearing indicates that the following exchange occurred with respect to the letter sent by the Appellant:

THE CHAIR: For the record, Mr. Ritchie has been hand‑delivered a document from Canada Post. It was delivered by Andrea Suffredine. She works at the Village of Masset Office here in Masset, B.C. at 1633 Main Street. I contacted my office this morning and requested that Sylvie Fournier attempt to contact the applicant because he is not present this morning. I received a call back from Ms. Fournier who advised me that she had spoken with the applicant and he apparently is in Merritt, British Columbia. He further advised Mademoiselle Fournier that he was not able to attend, that he did not have an appropriate boat license, and that he had also sent to Mr. Frank Ritchie's attention, at the Masset post office, a document. When I advised Mr. Ritchie of that information, Mr. Ritchie had attended the Masset Post Office and was told that it was not there. But, as I've indicated earlier, we've just had a document hand‑delivered. While I've been reading this information into the record, Mr. Ritchie has taken an opportunity to read the Canada Post document. Mr. Ritchie.

MR. RITCHIE: Yes, sir. Mr. Stoessiger writes as follows:

“Sorry I am unable to attend this hearing in Masset, B.C. to defend my case. I am not commercial fishing this year, consequently I am not in the area, I cannot afford the expense to be there to defend my case.”

THE CHAIR: What date is that?

MR. RITCHIE: The date is July 23rd.

THE CHAIR: Thank you, Mr. Ritchie. Any information on the outside of the envelope that indicates when the Masset Post Office received that document?

MR. RITCHIE: It was postmarked Merritt, B.C. July 26, 2012. It was mailed to the Howard Phillips Community Hall meeting room in Masset, B.C., attention myself. And apparently might have been received in Masset on the 26th of July. However, I was not here in the community hall, neither were you, sir, back on the 26th. That's why it's delivered today, the date of the hearing.

THE CHAIR: Thank you, Mr. Ritchie. It's clear from what has transpired this morning that the applicant is not attending. It's my understanding that Mr. Stoessiger has the address of not only the tribunal but I believe your office, Mr. Ritchie, in Ottawa.

MR. RITCHIE: Yes, sir.

THE CHAIR: The information that he has conveyed to you only as of this morning is not helpful in the sense that this hearing was scheduled and I've arrived from Ottawa to conduct this hearing. Mr. Ritchie has arrived from Ottawa to conduct this hearing, the court reporter has arrived from Vancouver to conduct this hearing, and we also have a witness. What normally happens in a situation like this is that we still continue with the hearing. The Minister of Transport's representative is required to present their case to me and present any number of witnesses that you wish to put in front me and then provide me with your submissions and then we'll bring the hearing to a close. As you know, Mr. Ritchie, I may have a question or two for your one witness this morning. It will really depend on what I hear. In terms of protocol, Mr. Ritchie, normally, as you know, what happens is that when you make your opening submissions I typically have the witnesses exclude themselves from the room, and perhaps we should continue to do that even though the applicant is not here and then we can proceed.

MR. RITCHIE: We can follow the protocol, sir.

[48] This exchange provides greater detail on the substance of the letter as well as the nature of its transmission. What seems apparent is that the letter was not received by the Tribunal or the Minister prior to the date of the Review Hearing. It was not argued by the parties that the Review Member should not have proceeded with the Review Hearing.

[49] The issue for this preliminary matter is whether the Appellant's absence was justified such that he is not prevented by subsection 232.2(2) of the Act from pursuing an appeal of the Review Determination. While the Minister did not take any position on this issue, in the view of this Appeal Panel, the entitlement to appeal requires consideration. If the Appellant is prevented from pursuing its appeal by subsection 232.2(2) of the Act, the Tribunal has no jurisdiction to rule on the matter.

[50] This is not the same as a procedural irregularity under the TATC Rules. Rule 4 of the TATC Rules provides that:

4. Where a procedural matter not provided for by the Act or by these Rules arises during the course of any proceeding, the Tribunal may take any action it considers necessary to enable it to settle the matter effectively, completely and fairly.

[51] “Act” is defined in the TATC Rules to include the Act (the Canada Shipping Act, 2001). In these unusual circumstances, the Appeal Panel employed Rule 4 to proceed with the Appeal Hearing, but made it clear that it was going to reserve its ruling on the issue of entitlement to a hearing. We are of the view that Rule 4 does not allow the Tribunal to override subsection 232.2(2) of the Act. This is not a situation of a procedural matter not provided for in the Act. The entitlement to an appeal where the appellant did not appear at the review hearing is expressly provided for in the Act. Accordingly, the Appeal Panel must consider the issue and determine whether there was sufficient reason to justify the Appellant's absence from the Review Hearing.

[52] The sole reason provided by the Appellant for not attending the Review Hearing was financial difficulty. He stated that the only means available to him to get to Masset was by air and that it would have been difficult in his financial circumstances. The Appellant gave no evidence as to his financial circumstances at the time. As noted above, the Appellant did ask the Tribunal to move the Review Hearing to a location closer to where he resides, but was refused on the basis that the incident had occurred in Masset, and that the witnesses were located there. This was not the first time that the Review Hearing had been postponed. The Review Hearing was rescheduled once at the request of the Appellant.

[53] In the Review Determination, the Review Member also noted the following at paragraph [13]:

By email dated June 4, 2012, the Applicant advised the Tribunal that because he did not have a licenced commercial salmon fishing vessel to take to Queen Charlotte, B.C., last summer, he could not afford to fly to Masset to defend his case. The Tribunal advised him that as the alleged incident took place in Masset and the witness for Transport Canada was also from Masset, the Review Hearing would occur there, in accordance with Tribunal policy.

[54] The Appellant did not challenge the decision of the Tribunal to locate the Review Hearing in Masset, as he could perhaps have done by requesting a pre-hearing conference pursuant to Rule 12 of the TATC Rules. However, the decision to proceed in Masset with the knowledge of the Appellant's claim of impecuniosity is relevant. As noted in Castle v. Canada (Minister of Transport), 2007 TATCE 20, TATC file no.: C‑3140‑02 (Appeal), the Tribunal has a long‑standing policy of holding hearings into alleged infractions as close as possible to the location of the alleged occurrence. In that case, the appeal panel noted that the location of a hearing is selected based on the balance of convenience, and it accepted that the decision was reasonable considering that the offence occurred and that the majority of the witnesses were located where the hearing was held. The appellant in that case claimed financial inability to travel to the hearing location, though there is no indication in the Castle decision that this issue was considered.

[55] The Appeal Panel understands that the Appellant's only reason for being in Masset at the time of the alleged offence was the pursuit of his employment as Master of a vessel in the commercial salmon fishing industry. In this respect, the Appellant wished not to return to Masset at his own expense on the grounds that it would have presented a financial hardship for him. The evidence as to the financial difficulties of the Appellant is limited to his statements during the Appeal Hearing and to the brief note above in the Review Determination. In essence, the evidence given by the Appellant was that he was not employed at the time of the Review Hearing and did not have the financial ability to pay for a trip to Masset.

[56] The Appeal Panel must determine whether the Appellant has justified his absence from the Review Hearing, such that this Appeal Panel can consider the merits of his appeal. The Appellant stated that he did not attend the Review Hearing because he could not afford to attend it. He claimed that he does not live near the venue for the Hearing, Masset, B.C., where the alleged infraction occurred, and that he could not afford the cost of transportation to attend the Hearing. The sole evidence was the unsubstantiated submissions of the Appellant both in his communications with the Tribunal, as reported in the Review Determination, as well as during the Appeal Hearing, that he did not have sufficient funds to make the trip to Masset, B.C.  As we noted above, the Appellant did request that the Review Hearing be moved to a location closer to his home in Merritt, B.C. Following consideration of this request, the Tribunal rejected that request and decided that Masset, B.C. was the appropriate venue pursuant to Tribunal policy, because that is where the alleged infraction occurred. The Appeal Panel recognizes that there may be circumstances in which an applicant may be able to justify their non-attendance at a review hearing due to financial limitations, but the burden will be on them to provide credible evidence to show why they were unable to attend. The Appellant, in providing no substantiation in support for his claim that his absence was justified for reasons of impecuniosity, does not meet that burden.  

[57] As the Appeal Panel reserved its decision on this issue and proceeded with the Appeal Hearing pending its decision, the remainder of the decision is provided for completeness. However, as will become apparent below, had the Appellant been entitled to appeal the Review Determination, the Appeal Panel would have dismissed the appeal.

C. Introduction of Evidence during the Appeal Hearing

[58] The primary question for the Appeal Panel on this point is whether the evidence sought to be adduced by the Appellant was not reasonably available at the Review Hearing, as is required by section 14 of the TATC Act. If the Appeal Panel concludes that it was not reasonably available at the Review Hearing, it may hear the evidence if it considers it necessary for the appeal.

[59] The Minister noted in her Arguments that an appeal should not afford the Appellant a second opportunity at a review hearing. In a previous decision, Minister of Transport v. Kerry Michael Kokoska, 1989 CAT file no.: P-0053-33 (Appeal), the Tribunal made useful comments on the rationale for this restriction with respect to section 7.1 of the Aeronautics Act, R.S.C. 1985, c. A‑2:

This section of the Act prevents both document holders and the Minister alike from using the initial hearing as a “testing ground” for their case, and then later correcting their deficiencies at the appeal level by introducing additional new evidence. All evidence which is “available” must be introduced at the initial hearing and if parties fail to do so, they do so at their peril. Parties to proceedings before the Tribunal cannot correct deficiencies at the appeal level unless such evidence was not available at the initial hearing, and then only if the Tribunal “deems it necessary for the purpose of the appeal”.

[60] Similarly, in considering the introduction of new evidence at the appeal level in the context of section 14 of the TATC Act, the Tribunal noted in Insight Instrument Corporation v. Minister of Transport, 2005 TATC file no.: O-3081-41 (Review) that the “introduction of new evidence in appeals is rarely allowed, and past decisions permitting it, take into consideration unique and extenuating circumstances”. The comments from these prior decisions continue to be applicable. The introduction of new evidence, or in the present case, any evidence at the appeal level must be carefully scrutinized to avoid creating a second opportunity for a hearing on the merits of the case. The question is whether the circumstances of this case were sufficiently unique and extenuating to permit the Appellant to introduce evidence at the appeal level when he did not do so at the Review Hearing. The Appeal Panel is of the view that they are not.

[61] The timelines in this matter are useful:

  1. The Notice was issued on December 23, 2010;
  2. The original review hearing was scheduled for October 6, 2011, but was rescheduled at the request of the Appellant;
  3. The Review Hearing occurred on August 3, 2012; and
  4. The Appeal Hearing occurred on July 25, 2013.

[62] Over 20 months passed between the date of the Notice and the Review Hearing, and nearly a further year passed before the Appeal Hearing. While the Appeal Panel sympathizes with the Appellant's apparent lack of understanding of the TATC Rules and the procedures of the Tribunal, the Appellant had more than sufficient time to seek advice, consult publicly available information, or to request further information from the Tribunal's registry. Given the amount of time which passed, we do not accept a lack of understanding of the procedures as justification. As the Minister indicated, the Notice included a reference to the Guide for Applicants which could be obtained from the Tribunal's registry. The Guide for Applicants is also available to the public on the Tribunal's website.

[63] Had the Appellant reviewed the Guide for Applicants or the legislation, as well as the TATC Rules referenced in it, it would have been apparent to the Appellant that by failing to introduce evidence at the Review Hearing, he would have limited opportunity to do so during an appeal. As the Tribunal noted in the Kokoska appeal decision, if parties fail to introduce available evidence at the review hearing, they do so “at their peril”. The Appellant's evidence was clearly available to him at the time of the Review Hearing. He chose, albeit for reasons of financial constraint, though perhaps without a full understanding of the consequences, not to present that evidence, and accordingly, put at risk his ability to introduce evidence during an appeal. Whether or not the Appellant received the Guide for Applicants from the registry, it was easily obtainable. The Appeal Panel can only conclude that the Appellant did not make any reasonable effort to inform himself of his rights and obligations once he received the Notice. Given the extensive amount of time available to the Appellant to inform himself, the Appeal Panel does not accept the Appellant's argument that he did not understand the procedures.

[64] As with the entitlement to appeal, the Appeal Panel does not say that the financial circumstances of an appellant could never be a factor in determining whether evidence was available at a review hearing. However, the nature and impact of the financial circumstances must be demonstrated through reasonable and credible evidence. For the same reasons indicated in the finding of the right of appeal, the Appeal Panel concludes that there was not sufficient evidence of the financial circumstances of the Appellant to assist in the determination of whether such evidence was available for the Review Hearing. The Appeal Panel finds that the Appellant's evidence was available at the time of the Review Hearing but that he chose not to appear. As such, the Appeal Panel denies the Appellant's request to submit evidence at the Appeal Hearing.

[65] During the Appeal Hearing the Appellant was sworn and gave evidence, but he was cautioned that his ability to do so was subject to the Appeal Panel ruling on this issue. Given that the Appeal Panel has determined that it has not accepted the introduction of evidence during the Appeal Hearing, the Appellant's evidence does not form part of this Appeal Decision.

D. Analysis with respect to other arguments

[66] The Appellant's primary assertion was that the Tribunal should have taken into account the contents of his July 23, 2012 letter at the Review Hearing, and that Mr. Ritchie, the Minister's representative, should have presented the questions contained in the Appellant's July 23, 2012 letter to the Minister's witness, Mr. Shaun Peacock. This is a question of fairness and natural justice for which the standard of review is correctness.

[67] It is the case that the Review Member had a reasonable amount of latitude with respect to the admission of evidence. As noted earlier in this Appeal Decision, Rule 4 of the TATC Rules affords the Review Member the ability to vary from procedure. As well, subsection 15(1) of the TATC Act provides as follows:

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, and all such matters shall be dealt with by it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

[68] While subsection 15(1) of the TATC Act afforded the Review Member the ability to take a flexible approach to the admission of evidence, he was still required to strike a balance between considerations of fair procedure and an expeditious resolution of the matter. A major component of the principle of natural justice is the right to be heard. However, the flexibility arising from subsection 15(1) of the TATC Act does not necessarily expand the right to be heard to a level which would allow evidence to be adduced on the primary matters at issue while not being subject to being tested for credibility. The Minister's citation of Schwartz is apt and makes clear the concern that evidence, even in the informality of a tribunal context, should be subject to being tested for credibility. This is particularly so when the evidence sought to be adduced is directly relevant to the primary issues of a case. Accepting the evidence of the Appellant at the Review Hearing solely in the form of a letter goes to the heart of the fairness of the proceeding because it could not have been challenged for credibility through cross-examination or even effectively put to the Minister's witness. The Appeal Panel concludes the Review Member was correct not to have accepted the contents of the Appellant's July 23, 2012 letter into evidence during the Review Hearing.

[69] The Appellant has also submitted that Mr. Ritchie, the Minister's representative, should have presented the questions contained in the Appellant's July 23, 2012 letter to the Minister's witness, Mr. Peacock. The Appellant provided no basis for why the Minister should have done so. The Appeal Panel finds that the Appellant's assertion is not sustainable in law or otherwise. There is no component of the principles of fairness or natural justice which would require the Minister's representative to present evidence for the Appellant. It should have been apparent to the Appellant that Mr. Ritchie was the Minister's representative. The Appellant admitted that he likely received the Guide for Applicants and that he knew how to communicate with the Tribunal's registry. For the reasons noted above, we do not accept a lack of understanding of the procedures as justification.

[70] Now that it has been determined that the Appellant may not adduce new evidence, little remains by way of Arguments. However, in the course of his arguments, the Appellant did seem to raise other issues, some of which could be construed as arguments relating to a due diligence defence. He argued that the only reasonable explanation for the spill was that Mr. Peacock accidently bumped the full valve, increasing the flow of fuel to the Vessel. While not an implausible theory, the Appeal Panel does not find this argument convincing. Absent clear evidence concerning the configuration of the fuel line, the anti-theft device, the fuel valve, the contents of the fuel tank, and the actions of the parties in respect of the above, this argument is largely speculation.

[71] The Appellant also argued that the spill could have been more effectively contained had more absorbent pads and a floating boom been readily available at dockside. Again, there was no admissible evidence with respect to the availability of such measures which might have mitigated the extent of the spill and been relevant for the assessment of the penalty. Moreover, the Minister correctly noted that the Appellant was away from the fuelling operation for a period of time and therefore not in compliance with the requirements of the Pollution Regulations, a fact which would be relevant to negating any due diligence defence.

VIII. DECISION

[72] The Appeal Panel concludes that the Appellant was not entitled to an appeal by virtue of having failed to attend the Review Hearing without sufficient reason to justify his absence. However, even if the Appellant had established his right to appeal, he nevertheless failed to prove his grounds of appeal. As such, the Review Member's Determination is confirmed. As such, the Review Member's Determination is confirmed and the monetary penalty of $ 1 250 is upheld.

January 2, 2014

Reasons for the Appeal Decision: David G. Henley, Member

Concurred by: Yves Villemaire, Member
Bradley M. Caldwell, Member