Decisions

TATC File No. MQ-0230-33
MoT File No. Q20110118-307-00281

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Claude Vaillancourt, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
paragraph 23(d) of the Canada Shipping Act, 2001, S.C. 2001, c. 26


Review Determination
Yves Villemaire


Decision: May 22, 2013

Citation: Vaillancourt v. Canada (Minister of Transport), 2013 TATCE 17 (Review)

[Official Translation]

Heard at Sept-Îles, Quebec, on March 26, 2013

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has proven, on a balance of probabilities, that the Applicant, Claude Vaillancourt, contravened paragraph 23(d) of the Canada Shipping Act, 2001. Consequently, the Member confirms the determination of the Minister of Transport cited in the Notice of Violation dated June 12, 2012.

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

I.  BACKGROUND

[1] On June 12, 2012, the Minister of Transport (Minister) issued a Notice of Violation to the Applicant, Claude Vaillancourt, with respect to a contravention of paragraph 23(d) of the Canada Shipping Act, 2001, S.C. 2001, c. 26 (Act). The Minister assessed a penalty of $1,250 against the Applicant.

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

No.

Contravention

Penalty

1

On or around September 13, 2010, in the province of Quebec, Claude Vaillancourt knowingly made a false or misleading statement to a person exercising his duties under the Canada Shipping Act, 2001, thereby contravening paragraph 23(d) of this Act.

$1,250.00

[3] On July 20, 2012, Mr. Vaillancourt filed a request for a review with the Transportation Appeal Tribunal of Canada (Tribunal). The review hearing was scheduled to take place on March 27, 2013, but it was moved ahead to March 26 upon agreement of the parties, since they were present and available.

II.  STATUTES AND REGULATIONS

[4] Paragraph 23(d), section 87 and paragraph 102(1)(a) of the Act stipulate:

23. No person shall:

(d) knowingly provide false or misleading information or make a false or misleading statement, either orally or in writing, to a person, classification society or other organization that is exercising powers or performing duties under this Act; or

87. Every person who is employed on board a Canadian vessel in a position in respect of which a certificate is required under this Part shall hold the certificate and comply with its terms and conditions.

...

102. (1) Every person commits an offence who contravenes

(a) section 87 (hold certificate or document and comply with its terms and conditions);

[5] Subsections 142(1) and 143(1), including the tables pertaining to these, of the Marine Personnel Regulations, SOR/2007‑115 (MPRs) stipulate the following:

142. (1) An applicant for a Fishing Master, Fourth Class certificate shall meet the requirements set out in column 1 of the table to this subsection and the corresponding specifications set out in column 2.

TABLE

Item

Column 1

Requirements

Column 2

Specifications

1.

Experience

Acquire at least 12 months of sea service performing deck duties on one or more fishing vessels that are 6 m or more in length, which service may include up to 6 months in an approved training program if the applicant has successfully completed that program.

2.

Certificates to be provided to the examiner

(a) MED with respect to basic safety;

(b) Restricted Operator's Certificate (ROC-MC) issued under the Radiocommunication Act;

(c) SEN limited; and

(d) marine advanced first aid.

3.

Pass examinations

(a) Chartwork and pilotage, level 1;

(b) navigation safety, level 1;

(c) ship construction and stability, level 1; and

(d) oral examination on general seamanship, after meeting the other requirements of this table.

  …

 143. (1) An applicant for a Certificate of Service as Master of a Fishing Vessel of Less Than 60 Gross Tonnage shall meet the requirements set out in column 1 of the table to this subsection and the corresponding specifications set out in column 2.

TABLE

Item

Column 1

Column 2

Requirements

Specifications

1.

Experience

At least 12 months of sea service acquired before the coming into force of this section as master of one or more fishing vessels of at least 15 gross tonnage or at least 12 m in overall length while engaged on voyages that the certificate sought would permit.

2.

Certificates to be provided to the examiner

(a) MED with respect to basic safety;

(b) if the vessel is equipped with a VHF radiotelephone installation, an appropriate radio operator certificate issued under the Radiocommunication Act; and

(c) if the applicant has not acquired at least seven fishing seasons of experience as master of one or more fishing vessels, with no two of those seasons having occurred in the same year,

(i) SEN limited,

(ii) marine basic first aid, and

(iii) small vessel operator proficiency.

[6] Subsection 2(2) and section 8 of the Schedule of the Administrative Monetary Penalties Regulations (SOR/2008-97) (AMPRs) stipulate the following:

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

SCHEDULE

(Section 2)

VIOLATIONS

Item

Column 1

Provision of the Act

Column 2

Range of Penalties ($)

Column 3

Separate Violation for Each Day

8.

Paragraph 23(d)

1,250 to 25,000

 

III. ELEMENTS TO BE PROVEN

[7] Based on the Notice of Violation, the Member has identified the following elements to be proven by the Minister in order to establish its case:

a) Mr. Vaillancourt submitted testimonials of sea service for the master of the motor vessel Christobal for a total period that exceeded the actual period, with this statement being false or misleading;

b) He made this statement knowingly.

IV. EVIDENCE

A. Minister

(1) Marino Frattin

[8] Inspector Marino Frattin testifies that he is a Small Commercial Vessel Marine Safety Inspector for Transport Canada on the Lower North Shore, and that one of his duties involves approving the amount of sea service in order to issue new certificates or renew current ones.

[9] Inspector Frattin states that on September 7, 2010, Mr. Vaillancourt applied to be eligible to take the EXN‑3 exams to obtain a certificate. He explains that this application, based on the testimonial of sea service as master of the vessel Christobal, caught his attention. He contends that the total amount of sea service time claimed by Mr. Vaillancourt for himself (175 days) and for Rémy Ward (76 days) exceeded the Christobal's total amount of sea service time for the period in question in 2007 (Exhibits M‑1 and M‑2).

[10] Inspector Frattin explains that the Act was amended on July 1, 2007. Changes to the regulations associated with this Act involved, among other things, replacing the Crewing Regulations (SOR/97-390) (CRs) with the MPRs.

[11] The former CRs required a certified master on fishing vessels with a gross tonnage in excess of 60 tonnes (t). The new MPRs applied this requirement equally to fishing vessels of less than 60 t.

[12] Inspector Frattin explains that in order to facilitate the transition between the previous regulation and the new one, Transport Canada offered navigating personnel a release from the certificate of service. This certificate of service gave the holder the equivalence of a certificate that is obtained after completing a knowledge exam by recognizing the experience acquired while navigating on board a fishing vessel of less than 60 t during a minimum of the previous seven continuous fishing seasons.

[13] Inspector Frattin states that the Christobal has a gross tonnage of 62.77 t (Exhibit M‑3) and that it therefore exceeds the allowable limit for obtaining a certificate of service. The vessel master must possess a Fishing Master, Fourth Class certificate.

[14] Inspector Frattin submits a series of testimonials of sea service submitted by Mr. Vaillancourt between 2002 and 2007 (Exhibit M-4). In addition he submits an application, from Mr. Ward, to be eligible to take the EXN-3 exams, as well as a series of testimonials of sea service from the latter, from 2001 to 2009 (Exhibit M-5).

[15] Inspector Frattin indicates that the testimonial of sea service submitted for Mr. Ward for 2007 indicates a total of 76 days of service as master of the Christobal. He states that this document caught his attention because an application for sea service had already been submitted for the same vessel.

[16] Inspector Frattin explains that even though it is possible for two masters to claim sea service on the same vessel during a fishing season, it is rare. He explains that normally Transport Canada's policy is to issue one Certificate of Service as Master per vessel. Moreover, he explains that Fisheries and Ocean Canada (DFO) requires the fishing permit holder to fish his catch quota himself.

[17] Inspector Frattin also explains that it is rare to accredit two masters on the same fishing vessel from the North Shore because these coastal vessels are not at sea for long periods of time. In particular, he notes that according to DFO, scallop fishing is only permitted between 6:00 a.m. and 9:00 p.m.

[18] Inspector Frattin therefore states that Mr. Vaillancourt made a false statement by submitting a testimonial of sea service for 76 days for Mr. Ward, and for 175 days for himself as master of the Christobal during 2007 (Exhibits M‑4 and M‑5).

[19] Inspector Frattin states that he submitted an access to information request to DFO in order to verify the possibility that the dates had overlapped in the information submitted in Mr. Ward's and Mr. Vaillancourt's testimonials of sea service (Exhibit M‑6).

[20] Inspector Frattin explains that there are a total of 229 days between April 15, 2007, and November 30, 2007. He indicates that if one subtracts the 175 days of sea service claimed by Mr. Vaillancourt, there remains only 54 possible days for Mr. Ward. However, 76 days of sea service are claimed for Mr. Ward. He contends that only a maximum of 54 days could have been claimed.

[21] Inspector Frattin states that the purpose of submitting the above-mentioned testimonials of sea service was to obtain certificates of service for both Mr. Ward and Mr. Vaillancourt. However, he contends that the temporary authorizations for 2007 covering the period from May 7 to July 23, indicate that Mr. Ward was the master of the Christobal (Exhibit M‑6).

[22] Inspector Frattin states that he discovered that a detention order had been issued by Inspector Antonin Marcoux for the Christobal in 2007 for lack of compliance with the Act (Exhibit M‑7).

[23] Inspector Frattin explains that checking the marine personnel database revealed that Mr. Ward did not hold the required certificate to operate the Christobal based on the guidelines in the above-mentioned detention order (Exhibit M-7), namely the Fishing Master, Fourth Class certificate.

[24] Inspector Frattin determined that the testimonial of sea service for Mr. Ward as master of the Christobal between April 8, 2007 and October 15, 2007 (Exhibit M‑5) had to be false.

[25] Inspector Frattin states that the detention order was lifted when Mr. Vaillancourt provided Transport Canada with evidence that he had hired a Fourth Class Fishing Master. He contends that this evidence adds Marc Boudreau to the number of masters of the Christobal during 2007 (Exhibit M‑8).

[26] Inspector Frattin presents a statement of sea service for an EXN‑2 certificate used to account for Mr. Ward's sea service time and signed by Mr. Ward (Exhibit M‑9). He points out that the dates reported as master of the Christobal for 2007 in this document are consistent with those reported in the testimonial of sea service (Exhibit M‑5), that is April 8 to October 15.

[27] Inspector Frattin states that Mr. Vaillancourt signed Mr. Ward's testimonial of sea service as master or authorized representative of the owner (Exhibit M‑5) and that he signed his own testimonial before a Commissioner for Oaths to make this statement official (Exhibit M‑4).

B. Applicant

(1) Claude Vaillancourt

[28] Claude Vaillancourt testifies that his vessel is used for crab and scallop fishing. He explains that crab fishing covers the period from early April to mid-July, but that the period changes from year to year. He also explains that scallop fishing runs from early April to December.

[29] Mr. Vaillancourt states that he mentally calculated the days of sea service and contends that any error in this calculation was neither deliberate nor intentional.

[30] Mr. Vaillancourt states that Mr. Ward was only master on board the Christobal on a sporadic, part-time basis as indicated on the temporary operator authorizations (Exhibit M‑6). He explains that when Mr. Ward was not authorized by DFO, Mr. Vaillancourt was the master on board.

[31] Mr. Vaillancourt explains that he acquired the Christobal in 1996. He contends that Inspector Marcoux authorized him to operate the vessel as master until 2003, even though a requirement of the regulation was a Fishing Master, Fourth Class certificate, which he did not possess.

[32] Mr. Vaillancourt states that Inspector Marcoux believed that the Christobal had a gross tonnage of less than 60 t even though its tonnage was over 62 t. He contends that a difference of two t is not visible to the naked eye and that an error by Transport Canada is just as plausible as his own with respect to the tonnage of the vessel.

[33] Mr. Vaillancourt states that he owned two fishing vessels from 1988 until he acquired the Christobal. He explains that the experience he acquired on board these vessels with a gross tonnage of less than 60 t allowed him to apply for a certificate of service.

[34] Mr. Vaillancourt states that when he bought the Christobal in 1996, he believed that the “grandfather clause” continued to apply, that is, he did not need to obtain a Fishing Master, Fourth Class certificate in order to operate this vessel. He believed he was exempt from this requirement. He contends that the Minister did not provide this requirement to him verbally or in writing.

[35] Mr. Vaillancourt specifies that certificates of services are granted to masters of vessels with gross tonnage of less than 60 t, but that Transport Canada refused to grant him this certificate despite his experience with the vessel. Transport Canada indicated that this was because the Christobal had a gross tonnage of 62 t.

[36] Mr. Vaillancourt states that taking a nautical training course is difficult because it requires travelling a long way from his home in Longue‑Pointe‑de‑Mingan. He explains that he would have been able to take the training in the winter if a course was given in his area. However, his responsibilities as the owner of a truck transportation company prevented him from travelling.

[37] Mr. Vaillancourt states that the testimonial of sea service that he signed for Mr. Ward (Exhibit M-5) was done freely, according to what he remembers, without verifying his books. In response to the Minister's representative, Mr. Vaillancourt acknowledges that verifying the books is normally required to validate the dates claimed by the person submitting the testimonial of sea service.

[38] Mr. Vaillancourt explains that the statement of days of sea service claimed for Mr. Ward and himself took into account days of 10-12 hours of fishing. In response to the Minister's representative regarding an overlap of 22 days in these claims, Mr. Vaillancourt contends that this number may seem important; however, the fact that the statement covered a 6-month period must be taken into account.

[39] Mr. Vaillancourt confirms he understood he was under oath when he submitted the testimonial of sea service. However, he states that he was not told that the days claimed in the forms for Mr. Ward and himself had to correspond (Exhibits M‑4 and M‑5). He explains that he declared the sea service time based on his knowledge, without thinking that these statements could have consequences.

[40] Mr. Vaillancourt states that he remembers that since 2003, Transport Canada has been reminding him that he would need a certificate of service. He also acknowledges that obtaining a certificate of service depends on the sea service.

[41] Mr. Vaillancourt explains that the number of work days on board and the number of days at sea must be counted separately on the form (Exhibit M‑4), which he did not do. However, he confirms that he did not knowingly make this error.

C. Minister's response

(1) Antonin Marcoux

[42] Inspector Antonin Marcoux is a Senior Marine Safety Inspector for Transport Canada.

[43] Inspector Marcoux states that in his opinion the main reasons that fishing vessel personnel submit their sea service time is to obtain the Certificate of Service as Master of a fishing vessel. He explains that this certificate is practically free-of-charge since it is only granted on the basis of sea service. This service must total 12 months over seven fishing seasons.

[44] Inspector Marcoux acknowledges that sea service is also required for Transport Canada to grant a Fishing Master, Fourth Class certificate. He stated that the purpose of submitting a testimonial of sea service is always to obtain a certificate.

[45] Inspector Marcoux explains that a total of 320 days of sea service would have been declared for the Christobal in 2007 if the 175 days for Mr. Vaillancourt (Exhibit M‑4) and the 76 days at sea as well as 69 work days for Mr. Ward (Exhibit M‑5) are taken into account. He states that this type of interpretation of the statement of sea service is mathematically impossible since the fishing period only consists of 231 calendar days.

V. ARGUMENTS

A. Minister

[46] The Minister's representative maintains that the evidence mathematically demonstrates that there is a difference of 22 days between the number of calendar days and the number of days of sea service time declared by Mr. Vaillancourt for Mr. Ward and for himself during the period in question.

[47] The Minister's representative contends that a difference of 22 days is significant enough to support the Minister's assertion that this is a false statement and not an error.

[48] The Minister's representative contends that the evidence has shown that Mr. Vaillancourt was not the master of the Christobal for a period of 175 days in 2007, as he declared, but that it was Mr. Ward who was.

[49] The Minister's representative claims that the false statements were made in order to obtain a certificate that Mr. Vaillancourt had known he needed to obtain for many years.

[50] The Minister's representative claims that the evidence shows not only an inconsistency between the days of sea service declared for Mr. Ward and for Mr. Vaillancourt but that it also raises doubts about whether Mr. Vaillancourt was master of the vessel for the number of days he declared.

[51] The Minister's representative contends that the required evidence is not beyond any reasonable doubt, but on the balance of probabilities. She asserts that based on a balance of probabilities, Mr. Vaillancourt knowingly made a false statement regarding sea service time.

[52] The Minister's representative explains that a difference of two or three days in the statements of sea service could not support the thesis of a false statement made knowingly. However, she also asserts that a difference of 22 days is much greater and that, in addition, Mr. Vaillancourt knew that he was making a declaration under oath in his statement.

[53] The Minister's representative explains that a declaration under oath is the Minister's only means of ensuring the veracity of a vessel owner's statements regarding his own sea service time. She expresses doubts regarding Mr. Vaillancourt's sincerity when he stated that it was an error.

[54] The Minister's representative also claims that Mr. Vaillancourt's submission of Mr. Boudreau's certificate following the detention order supports the argument that the Applicant made a false statement. She maintains that the presence of a third master on the Christobal in 2007 would increase the difference between the number of possible days and the days declared by Mr. Vaillancourt even further.

[55] The Minister's representative explains that the Minister could have assessed a higher penalty than the minimum of $1,250, but that since it was a first offence, the Respondent showed leniency toward the Applicant.

B. Applicant

[56] Mr. Vaillancourt explains that the total number of hours recorded on the permits does not necessarily correspond to the actual hours of work. He maintains that even when the fishing management plan is adhered to, the number of work hours can exceed the number of hours declared. For example, he mentions that scallop fishing from 6:00 a.m. to 4:00 p.m. in the Anticosti Island area involves six hours of crossing time as well as additional time to put the dredge bags in the water and get the catch ready during the return trip.

[57] Mr. Vaillancourt also explains that calculating the “at sea” service time includes periods when the vessel is docked, e.g. for engine maintenance. However, he acknowledges that the testimonials of sea service for the Christobal cannot exceed the total of 231 calendar days for the period in question and that if so, this is an error.

[58] Mr. Vaillancourt explains that he submitted Mr. Boudreau's certificate after receiving the detention order because Mr. Boudreau possessed the required certificate as master and that it was useful to do so. However, he contends that he did not deliberately make a false statement.

VI. ANALYSIS

[59] The evidence showed that Mr. Vaillancourt applied for a Certificate of Service as Master of a Fishing Vessel of Less Than 60 Gross Tonnage for the Christobal, for himself and for Mr. Ward, in accordance with subsection 143(1) of the MPRs.

[60] The evidence has shown that subsection 143(1) of the MPRs does not apply to the Christobal since this vessel exceeds the gross tonnage of less than 60 t that is required. Indeed, a Fishing Master, Fourth Class certificate is required under subsection 142(1) of this regulation.

[61] The presumed violation under paragraph 23(d) of the Act relates to the statements made by Mr. Vaillancourt about the number of days on the testimonial of sea service for the master of the Christobal.

[62] The statement being contested by the Minister specifically relates to the testimonials of sea service for Mr. Ward and Mr. Vaillancourt, the purpose of which were to obtain a Certificate of Service as Master of a Fishing Vessel. This certificate is required under section 87 of the Act and is subject to paragraph 102(1)(a).

[63] Mr. Vaillancourt's application was submitted on September 7, 2010 (Exhibit M‑2) and Mr. Ward's on March 20, 2010 (Exhibit M‑5, page 2). These applications are in part based on the testimonials of sea service for the master of the vessel Christobal, which claimed a total of 251 days for year 2007. This total consists of 175 days claimed by Mr. Vaillancourt for himself (Exhibit M‑4, page 6) and of 76 days claimed for Mr. Ward (Exhibit M‑5, page 9).

[64] Inspector Frattin explained that Transport Canada's standard policy is to issue a single Certificate of Service as Master per vessel and that it is DFO's policy to require a permit holder to fish his catch quota himself. In themselves, these explanations do not prejudice the Applicant's case but they do provide additional background information.

[65] It is important that Mr. Ward's and Mr. Vaillancourt's testimonials of sea service clearly distinguish their respective service as masters of the Christobal during the period in question in 2007.

[66] In 2007, Mr. Vaillancourt claimed sea service time from April 15 to November 30. During this same year, Mr. Ward claimed sea service time from April 8 to October 15. This was therefore for a period that began and ended before that of Mr. Vaillancourt. The two periods overlap and cover a total period that starts April 8 and ends November 30.

[67] Inspector Frattin stated that it was mathematically impossible to claim 251 days (175 and 76 days) when the total number of calendar days between April 15 and November 30, 2007, was only 229 days. Indeed, the period that the Minister used went from April 8 to November 30 inclusive, for a total of 237 days (229 + 1 + 7).

[68] The Minister's representative contended that a maximum of 54 days could have been claimed by Mr. Ward. However, by using the total of 237 days, the latter could have claimed 62; that is, 237 days minus the 175 days claimed by Mr. Vaillancourt. Nonetheless, 76 days were claimed by the latter, or 14 days more than what was possible.

[69] The Minister's representative claimed that the evidence shows not only an inconsistency between the days of sea service declared for Mr. Ward and for Mr. Vaillancourt, but it also raises doubts about whether Mr. Vaillancourt was master of the vessel for the number of days declared.

[70] Mr. Vaillancourt testified that Mr. Ward was only master on board the Christobal on a sporadic basis. He explained that when Mr. Ward did not have temporary authorization from DFO, that he was himself acting as master on board. I accept this statement as true based on the temporary operator authorizations (Exhibit M‑6).

[71] The evidence appreciably shows an overlap in the dates of Mr. Ward's and Mr. Vaillancourt's testimonials of sea service. However, the result of the access to information request to DFO only shows 30 days of temporary operator authorization for Mr. Ward in 2007, which is not considered probative. The Minister contends that a maximum of 54 days could have been claimed.

[72] Mr. Vaillancourt testified that Inspector Marcoux had authorized him to operate the vessel as master from the time he acquired the Christobal in 1996 until 2003, even though Mr. Vaillancourt did not possess a Fishing Master, Fourth Class certificate. The Member considers this information to be true. The evidence showed that Transport Canada initially believed that the Christobal had a gross tonnage of less than 60 t, even though its actual tonnage exceeded 62.77 t. (Exhibit M‑3).

[73] Mr. Vaillancourt suggested that a difference of two tonnes was not visible to the naked eye and that an error by Transport Canada regarding the required certificate as master was plausible. The Member accepts the Applicant's suggestion that there was an uncertainty in his mind regarding the required certificate. However, if the Applicant had been entitled to the certificate of service, the number of days at sea required to obtain it should have been met.

[74] Mr. Vaillancourt explained that calculating sea service acknowledges some periods when the vessel is docked, which is true. However, he acknowledged that the testimonials of sea service for the Christobal cannot exceed the total number of calendar days for the period in question. He admits that if so, this was an error.

[75] In light of the aforementioned, the Member considers that a difference of 14 days between the number of possible days of sea service and the number of days declared under oath is significant and constitutes a false or misleading statement.

[76] Consequently, the Member finds that the Minister has proven, on a balance of probabilities, the first element of the violation that the Applicant was reproached for.

[77] Inspectors Frattin and Marcoux stated that the only reason navigating personnel declare their sea service time is to obtain a certificate. In addition, Inspector Marcoux issued a detention order for the Christobal in 2007 requiring evidence that the master of the vessel was duly qualified with a Fishing Master, Fourth Class certificate (Exhibit M‑7).

[78] Partly based on these testimonies, the Minister's representative contended that Mr. Vaillancourt had known, for a long time, that it was necessary to obtain the required certificates and that he therefore knowingly signed the testimonials of sea service.

[79] Mr. Vaillancourt explained that the crab and scallop fishing season starts in April and ends in December, and that the total number of hours recorded on the permits does not necessarily correspond to the actual number of work hours. He contended that he mentally calculated the days of sea service during this lengthy period and that all calculation errors were neither deliberate nor intentional. The Member acknowledges the difficulty associated with ensuring the consistency of testimonials of sea service on board a fishing vessel in these types of circumstances.

[80] The Minister declared that the detention order against the Christobal had been lifted when Mr. Vaillancourt provided Transport Canada with the evidence that he had hired Mr. Boudreau, a Fourth Class Fishing Master. This affirmation and the copy of Mr. Boudreau's certificate dated March 22, 1999, provided as evidence (Exhibit M‑8), were not contested by the Applicant.

[81] The Member accepts the Minister's representative's proposal that the submission of Mr. Boudreau's certificate following the Christobal's detention order only increases the potential difference between the number of possible days of sea service and the number of days claimed by Mr. Vaillancourt for the master of the vessel.

[82] Mr. Vaillancourt declared that he believed that the “grandfather clause” continued to apply to him like with other masters of vessels of less than 60 t, and that he did not need to obtain a Fishing Master, Fourth Class certificate to operate the Christobal. He contends that Transport Canada did not provide to him a requirement in this respect, either verbally or in writing.

[83] This violation concerns the allegation of false statements made by the Applicant regarding sea service. The type of certificate solicited is irrelevant. The Applicant's argument about the application of the “grandfather clause” is pertinent only to the extent that it would allow for establishing reasonable doubt about the requirements to which the Applicant was subject.

[84] With regard to this, the Member considers that the detention order issued by the Minister on July 6, 2007 (Exhibit M‑7) constitutes sufficient evidence regarding the specific requirements for the certificate as master of the Christobal.

[85] During the hearing, Mr. Vaillancourt acknowledged that Transport Canada had been reminding him since 2003 that he would need a certificate of service, and that obtaining this certificate would depend on sea service. In light of these testimonies, the Member feels the Applicant was clearly aware of the importance of having a certificate of sea service on board the Christobal and that he had a duty to understand the need for accuracy in his statements.

[86] Mr. Vaillancourt shared with the Tribunal the difficulties caused by the distances of the marine training centres and his obligations during the off season. This argument would only be valid with regard to obtaining a Fishing Master, Fourth Class certificate, but the Member nonetheless notes that any request for an extension from Transport Canada was considered in analyzing this case.

[87] Mr. Vaillancourt stated that he signed the testimonial of sea service for Mr. Ward (Exhibit M-5) “…without verifying my books… freely, based on what I remembered…”. However, he acknowledged that verifying records was normally required in order to validate the dates claimed by the person submitting the testimonial of sea service.

[88] Mr. Vaillancourt also admitted that he did not account for the number of work days on board and the number of days at sea in his own testimonial of sea service (see Exhibit M‑4). The Member considers that the Applicant's statements demonstrate his acknowledgement of a lack of compliance with the MPRs.

[89] The Minister's representative in part justified the assessment of the penalty by explaining that the statement under oath is the only means available to Transport Canada to ensure the veracity of statements made by the owner of a vessel regarding his own sea service time.

[90] The Applicant's statements leave the Member to doubt his explanations regarding the differences in the days of sea service as mere calculation errors. Given the limits of verification imposed on Transport Canada, the Member would have preferred more probative explanations.

[91] The word “knowingly” is defined in Le Petit Robert, (2000 ed.), as “consciously” and is synonymous with “on purpose” and “deliberately”. Based on this definition and in the absence of testimonies and reasonable grounds to the contrary, the Member cannot accept the Applicant's proposal that he did not know that false or misleading information had been provided to the Minister.

[92] Consequently, the Member finds that the Minister has proven, on a balance of probabilities, the second element of the violation that the Applicant was reproached for.

[93] The Member notes the Minister's representative's proposal regarding the Minister's leniency toward the Applicant by assessing the minimum penalty set out in subsection 2(2) and section 8 of the Schedule of the AMPRs since it is a first offence.

VII. DETERMINATION

[94] The Minister of Transport has proven, on a balance of probabilities, that the Applicant, Claude Vaillancourt, contravened paragraph 23(d) of the Canada Shipping Act, 2001. Consequently, the Member confirms the determination of the Minister of Transport cited in the Notice of Violation dated June 12, 2012.

May 22, 2013

Yves Villemaire

Member