Decisions

TATC File No. MP-0200-33
MoT File No. P20111208-505-00652

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

James Harrison, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
subsection 46(2) of the Canada Shipping Act, 2001, S.C. 2001, c. 26


Review Determination
Alex Phillips


Decision: January 17, 2014

Citation: Harrison v. Canada (Minister of Transport), 2014 TATCE 6 (Review)

Heard in: Campbell River, British Columbia, on September 10, 2013

REVIEW DETERMINATION AND REASONS

Held: I find for the Applicant, James Harrison, and dismiss the alleged violation. The Minister has not proven, on the balance of probabilities, that subsection 46(2) of the Canada Shipping Act, 2001, was violated by Mr. Harrison on or about July 16, 2011.

The monetary penalty of $1 250.00 is cancelled.

I. BACKGROUND

[1] On February 14, 2012, the Minister of Transport (Minister) issued a Notice of Violation (Notice) to James Harrison with respect to a violation of subsection 46(2) of the Canada Shipping Act, 2001, S.C. 2001, c. 26 (Act), and assessed him a monetary penalty of $1 250, pursuant to the Administrative Monetary Penalties Regulations, SOR/2008‑97 (MPRs).

[2] The Notice alleges that the Minister has reasonable grounds to believe the following:

On or about the 16th of July 2011, at or near Port Hardy, in the province of British Columbia, James Harrison failed to ensure that the MV Salmon City Charters (6K16820) was registered as required under Part 2 of the Canada Shipping Act, 2001, thereby contravening subsection 46(2) of that Act.

[3] On May 5, 2012, Mr. Harrison requested a review of the facts of the alleged violation and monetary penalty with the Transportation Appeal Tribunal of Canada (Tribunal), pursuant to paragraph 232(1)(b) of the Act.

II. STATUTES

[4] Definitions under section 2 of the Act, as well as section 43 and subsections 46(1) and (2) of the Act, read as follows:

2. “passenger” means a person carried on a vessel by the owner or operator, other than

[…]

(b) a person carried on a vessel that is not a Safety Convention vessel who is

(i) the master, a member of the crew or a person employed or engaged in any capacity on board the vessel on the business of that vessel, or

(ii) a guest on board the vessel, if the vessel is used exclusively for pleasure and the guest is carried on it without remuneration or any object of profit;

[…]

“pleasure craft” means a vessel that is used for pleasure and does not carry passengers, and includes a vessel of a prescribed class.

[…]

“qualified person” means

(a) a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; or

[…]

“vessel” means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to method or lack of propulsion, and includes such a vessel that is under construction. It does not include a floating object of a prescribed class.

[…]

43. (1) The Chief Registrar is responsible for establishing and maintaining a register to be known as the Canadian Register of Vessels. The Chief Registrar is to divide the Register into parts, including a small vessel register, for the classes of vessels that the Chief Registrar specifies.

(2) The Register is to contain records of the information and documents specified by the Chief Registrar in respect of a Canadian vessel or a fleet that is registered under this Part, including its description, its official number, the name and address of its owner and, in the case of a vessel that is not registered in the small vessel register, details of all mortgages registered in respect of it.

[…]

46. (1) Unless it is exempted under the regulations, a vessel must be registered under this Part if it

(a) is not a pleasure craft;

(b) is wholly owned by qualified persons; and

(c) is not registered, listed or otherwise recorded in a foreign state.

(2) Every owner of a vessel that is required by subsection (1) to be registered under this Part shall ensure that it is so registered.

III. ELEMENTS TO BE PROVEN

[5] Based on the Notice, I have identified the following elements required to be proven by the Minister, on the balance of probabilities, in order to find a violation of subsection 46(2) of the Act:

  1. the date of the alleged violation;
  2. the place of the alleged violation;
  3. whether the vessel is not registered, listed or otherwise recorded in a foreign state;
  4. whether the vessel is not a pleasure craft;
  5. whether the vessel is wholly owned;
  6. whether the owner is a qualified person; and
  7. whether the owner did not ensure that the vessel is registered in the small vessel register, as described in subsection 43(1) of the Act.

IV. EVIDENCE

A. Minister

(1) Captain John Gilbert

[6] Captain John Gilbert testified that he contacted the “Registry in Ottawa”, Ontario on or about July 20, 2011. I took this to mean he contacted the Chief Registrar's office that maintains the Canadian Register of Vessels, including the small vessels register described in subsection 43(1) of the Act.

[7] He then testified that the Registry in Ottawa, after checking, advised him that it had not received any documentation from either Mr. Harrison or from Salmon City Charters. The Minister later tendered through Captain Gilbert a copy of an email dated July 18, 2011, from Marie-Josée Leduc, who is indicated as Assistant Registrar with Transport Canada in Ottawa, to Captain Gilbert (Exhibit M‑4). The subject line of this written email reads “RE: Jamie Harrison”, and the body of this email states: “I have looked in all our received documents and we have not received anything from the gentleman in question”.

[8] Captain Gilbert further testified that he then contacted Kimberly Mikoula, who was the doing most of the administrative work for the Small Vessel Program in British Columbia (B.C.). She informed him that she had no information from Mr. Harrison.

[9] Captain Gilbert testified that he made these inquiries after receiving a letter from the Royal Canadian Mounted Police (RCMP) about July 20, 2011, indicating that two RCMP officers had stopped Mr. Harrison operating a boat identified as Salmon City Charters near Port Hardy, B.C., on July 16, 2011.

[10] In further testimony about Ms. Mikoula, who worked in Transport Canada's Kelowna, B.C., office, Captain Gilbert testified that:

she was functionally doing much of the administration of the Small Vessel Program. People would send their applications for getting into the Small Vessel Program to her and she would process them and file them. I inquired by telephone to her if she had any records, any knowledge of a James Harrison or Salmon City Charters. And she got back to me after a day or so and said no she had nothing. I only have a telephone conversation in this case; I do not have written confirmation (italics added).

[11] When then asked by me if the Registry office for the Small Vessel Program was in Kelowna, Captain Gilbert testified that it is in Ottawa.

[12] When further asked if he relied on Ms. Mikoula in the Kelowna office, as an administrator of the Small Vessel Program for B.C., to contact Ottawa to see if Mr. Harrison was registered, Captain Gilbert testified as follows:

What was going on for awhile, and I don't know if it overlaps this exact period, was that because we were getting no information sharing from the Registry office in Ottawa. For awhile all – Kim and Gavin were asking all the people that were applying for the Small Vessel Program to submit their registry copies to Kelowna as well. And there may have been a short period where they were saying “submit your registry documents and we will forward them on to Ottawa”. Ottawa is the only place that can do the registry (italics added).

[13] In addition to these queries made by Captain Gilbert on or about July 18 to 20, 2011, Captain Gilbert testified that:

towards the end of August, the RCMP then enquired if there had been any movement on this. I again checked with the Registry in Ottawa. Again there was no indication of an application from Mr. Harrison …

[14] The Minister later tendered an email dated August 26, 2011, from Captain Gilbert to a Monique Lepage (Exhibit M‑3). This email corroborates Captain Gilbert's testimony of a query being made by Captain Gilbert at the end of August 2011.

[15] In this email dated August 26, 2011, Captain Gilbert asked for a vessel owner search of James (or Jamie) Harrison, who worked out of Port Hardy, B.C., by the company name Salmon City Charters. However, I note that no documentary evidence of a reply from the Registry office in Ottawa to Captain Gilbert's email was tendered by the Minister.

[16] In this email dated August 26, 2011, Captain Gilbert also wrote:

I first dealt with him near the end of June, and enquired from your office on July 18th, at which time there was no record. As this was fairly soon after I had spoken to him I did not pursue it further. It has come up again …

[17] Captain Gilbert also testified that:

I didn't really touch this again until into November when I again did a check and there was still no evidence at that point of an application to register the vessel.

[18] The Minister later tendered through Captain Gilbert a one‑page Transport Canada Vessel Registration Query System report with a print-out date of December 20, 2011 (Exhibit M‑1), which indicates:

Vessel Listing

There are no records matching your criteria:

  • Owner name starts with: James Harrison.

[19] Captain Gilbert testified that he first received complaints from registered vessel charter operators about Mr. Harrison prior to or during the first week of May 2011. Captain Gilbert testified:

we get complaints from the public all the time about somebody else, usually a competitor, but we always try to check it out. And I had a phone conversation with Mr. Harrison in the first week or so of May, in which I basically laid out for him what was required in terms of the registration of the vessel …

[20] He further testified that this conversation was followed up by an email requesting details of the vessel registration and Mr. Harrison's operator training credentials that are required under the Act. In this respect, the Minister later tendered a single page with three emails reproduced on it (Exhibit M‑5).

[21] The first email dated May 13, 2011, is the email described above by Captain Gilbert in his testimony wherein Captain Gilbert asked Mr. Harrison to fax copies to him of either his boat's registration, or the completed application for registration which had been sent to Ottawa. In addition, in this first email, Captain Gilbert also asked for copies of Mr. Harrison's training certificates. Lastly, this first email also requested that the Applicant “send to Kimberley in Kelowna you[r] completed small vessel compliance program detailed checklist.” This email then indicated Ms. Mikoula's address in Kelowna.

[22] The second email, dated May 18, 2011, is from Captain Gilbert to Mr. Harrison advising Mr. Harrison that Captain Gilbert was still waiting for copies of the documents he had requested.

[23] The third email is from Mr. Harrison to Captain Gilbert, also dated May 18, 2011, stating that Mr. Harrison was planning to send the documents before the end of the week.

[24] Under cross‑examination by Mr. Harrison, Captain Gilbert testified that Ms. Mikoula left her position at the Kelowna office, and that the Kelowna office was closed at some point in 2012.

[25] Mr. Harrison then asked Captain Gilbert whether it was possible that Ms. Mikoula could have misplaced or misfiled his documents. Captain Gilbert responded, stating that:

it's entirely possible.We did the best search that we could to find out information. When Ms. Mikoula left Transport Canada we found there was a fair number of discrepancies in the quality of her file keeping. She had hundreds of files not properly done. So it's possible that her search, which she replied to me was unsuccessful in finding anything of you, I could not say that she didn't have any material from you (italics added).

[26] During cross-examination, Mr. Harrison asked Captain Gilbert if there were any written replies from Ms. Mikoula. Captain Gilbert testified that:

I believe, in retrospect, I think I only had a phone conversation with her. A couple of phone conversations with her. I can't find any record email-wise to that effect. I have looked since then.

[27] I then asked Captain Gilbert about the nature of the search that Ms. Leduc, the Assistant Registrar in Ottawa, conducted on July 18, 2011, specifically:

So in looking at [Exhibit] M-4, Ms. Leduc the Assistant Registrar simply says: “I have looked in all our received documents and we have not received anything from the gentleman in question”. Is that a query she is responding to in relation simply to “Jamie Harrison”, which is in the subject line “RE: Jamie Harrison”?

[28] Captain Gilbert responded affirmatively.

[29] Referring to Ms. Leduc, the Assistant Registrar in Ottawa, Mr. Harrison asked Captain Gilbert if it was possible that Ms. Mikoula misfiled or misplaced his applications, and consequently would not have sent them to Ms. Leduc. In response, Captain Gilbert testified that this was a possibility.

[30] Later Mr. Harrison also asked Captain Gilbert:

On the search and time line dates, are they searching “Jamie Harrison” or “James Harrison”? Because all my boat stuff is “James Harrison” … I go by–anything that has to do official or anything, everything is “James Harrison”.

[31] In reply, Captain Gilbert testified that up to this point in his contact with the Applicant, he had known the Applicant as Jamie.

[32] In redirect examination on this point, Captain Gilbert then testified,

I could find no evidence of an attempt to register his vessel when I was looking for that information between May and December. I can't make a comment of what Mr. Harrison might have submitted and to whom or how. I'm saying I can't find it.

B. Applicant

(1) James Edward Harrison

[33] James Edward Harrison testified that he does not conduct a salmon charter business full-time and that he is a full-time logger. He also stated that he is not chartering every time he uses his boat.

[34] He further testified that Captain Gilbert had forwarded to him email complaints from other salmon fishing charter operators, and stated, “I know who was making the complaints about me throughout the whole time, that were completely irrelevant to anything other than I was on my boat fishing”.

[35] Mr. Harrison then testified that he was directed by Mr. Gilbert to send his boat registration to Kelowna to the attention of Ms. Mikoula because of the overflow of applications going to Ottawa. He stated that he did as asked, but did not make a copy of it.

[36] Mr. Harrison elaborated on this point by testifying further that:

John Gilbert suggested I send it to her and that she would go over it and if there was any mistakes we could deal with it quickly than having to send it to Ottawa and having it come all the way back.

[37] Mr. Harrison testified he followed up with Ms. Mikoula numerous times prior to being contacted by Donna Brown from Captain Gilbert's office in Nanaimo, who told him that Captain Gilbert was no longer dealing with him, and who directed him to send his information, including his safety course certificates, to her, which he did. This was prior to him being pulled over and checked by the RCMP on the water near Port Hardy on July 16, 2011.

[38] When Mr. Harrison was pulled over by the RCMP officers on July 16, 2011, he showed one of them these emails to Ms. Brown. Regarding the incident, he testified:

I showed the person in charge of the police boat, I showed him my Blackberry with all the emails from Donna … He read them all and he seen where she directed me that I could fish. She didn't want me to lose any money. It was a three-day charter. That's all I had. Because I had a new boat coming (italics added).

[39] When asked if he was the only person on the boat at that time, Mr. Harrison testified that he had two friends from the United States with him.

[40] Lastly, Mr. Harrison testified that, “I seem to be a victim of the system. I have done everything I have been told and I sent it to her”.

[41] Under cross-examination by the Minister, Mr. Harrison testified as follows:

  1. He sent his original registration documents to Ms. Mikoula by normal mail, not by registered mail, in an eight‑by‑ten inch envelope;
  2. He did not make any copies;
  3. After he submitted his application and contacted Ms. Mikoula to follow-up, “Ms. Mikoula informed me that she had as usual an over-abundance of applications coming in, and then I wouldn't hear from her”;
  4. Ms. Mikoula did not confirm to him that she had received his application when he spoke with her on the telephone; and
  5. When asked if between May and December 2011, and when talking with Captain Gilbert, whether or not Captain Gilbert had told him that Transport Canada had not received his registration documents, Mr. Harrison stated: “I hadn't talked to Captain Gilbert between when I was pulled over until I got the ticket…”

[42] The Minister also asked Mr. Harrison about the documents he was asked to send to Captain Gilbert in response to Captain Gilbert's emails of May 13 and 18, 2011, and whether Mr. Harrison had sent them to Ms. Mikoula after these dates.

[43] In response, Mr. Harrison testified as follows:

No, the only thing I sent to Nanaimo—as I told you before, I didn't have a copy of the register. So, when he contacted me in May, I sent it to Kim. I sent the copies of my certificates to the Nanaimo office ... So my paper work, yes, was sent to the Nanaimo office. As for the register, I didn't have a copy of it, it was all sent to Kelowna.

[44] When asked if he mailed the application for the registration of his boat beforeMay 18, 2011, he testified that he had. He also stated that he sold this boat in the summer of 2011.

[45] When further asked why he responded that he would send these documents before the end of the week, Mr. Harrison responded that he sent what he had.

[46] When asked if he still had the registration on May 18, 2011, he testified, “No, I sent down the documents that I had. I never said which documents, I said I will send down documents. And I sent down the certificates to Donna Brown”.

[47] When asked by the Chair, he clarified that by stating that he “sent down” the documents he meant that he sent his registration to Ms. Mikoula at the Kelowna office and the certificates to the Nanaimo office.

[48] When asked by me if Ms. Mikoula had asked him to send the boat registration or the completed application for registration to her, Mr. Harrison testified, “Yes. She was part of the Small Vessel Program”.

[49] When I then started to ask, “so, when Captain Gilbert says, ‘which you have sent off to Ottawa'”, Mr. Harrison testified, “I never sent them to Ottawa. I sent them to Kelowna, where I was told to send them to”.

[50] In response to the Minister's question as to whether Mr. Harrison owned the boat in 2010, Mr. Harrison replied in the affirmative.

[51] When next asked if he owned the boat jointly with his grandfather who had purchased the boat sometime prior to 2010, Mr. Harrison testified that his grandfather paid for the boat, and that he ran it. He stated further that “it was a family boat. I wasn't the direct owner of the boat. As in paperwork, yes, the boat would have been put in my name. As for ownership, it was a family. He bought the boat for the family and then I decided I was going to charter (italics added).”

[52] When the Minister asked him if he thought he was responsible to make sure that his boat was registered, Mr. Harrison testified:

I did my due diligence. I showed the RCMP officer everything that I had, and he told me to carry on. And he informed me that if I was to hear from him within a week, because he was going to Nanaimo, I was in trouble. And if I never heard anything from him, my story cleared out, and I never heard from him again.…

He further testified that:

I never contacted Ottawa. I contacted John Gilbert and asked him why, and John told me he couldn't find me in the system anywhere. And I sent all my documentation to Kelowna and I sent all my certificates to Nanaimo. And what they do and how they do their filing has nothing to do with me. I think it's an inner office thing. I don't think that things were filed properly in this matter (italics added).

[53] In reply to the Minister's cross-examination of him, Mr. Harrison testified:

I think there is a failure to communicate between offices, and I think it goes further than just registering in Kelowna or a register in Ottawa, and I feel that is why we are sitting here today. I have done my due diligence. I never questioned authority when it comes to direction of what I need to do, and I never questioned anyone in Transport Canada. I sent things to exactly to where I was supposed to send them to, and that's all I have. I mean I did what I was supposed to do and that's what I did. […] So I think I'm here because there is a failure of some sort of communication between the ranks or of the overworked people.

[54] When asked about the purpose of the boat, Mr. Harrison testified:

The purpose of the boat was probably 95 per cent pleasure, and I decided that I was going to start doing some chartering just to pay for maintenance of the boat. Just to cover the boat fuel and the family would come up for fishing, and that's what it was. I put on the register my name as being the person, because I was the guy that was always on the boat. … the register was sent away in my name and the boat was located in Port Hardy (italics added).

[55] Mr. Harrison then confirmed that he had sent the register to Ms. Mikoula.

[56] Lastly, I asked him if it was his evidence that the boat's purpose included chartering on a part-time basis. Mr. Harrison testified, “yes, it's always been known that I am part-time…”

V. ARGUMENTS

A. Minister

[57] The Minister read out the elements listed in subsection 46(1) of the Act that are needed to establish a violation of subsection 46(2) of the Act, and submitted the following:

  1. According to Mr. Harrison's testimony, Mr. Harrison's boat was always partly used for a commercial purpose and therefore, the vessel in question was not a pleasure craft;
  2. According to Mr. Harrison's testimony, the boat was “owned in the family for probably at least himself, father and the grandfather and therefore, concluding here that Mr. Harrison is a citizen of Canada”;
  3. Mr. Harrison and his family owned the boat starting in 2009. When he was pulled over (July 16, 2011) or when he was given the Notice on February 14, 2012, Mr. Harrison had already purchased the boat and had been operating it for three years.
  4. The vessel was wholly owned by a Canadian citizen;
  5. The K licence number on the boat attests to the fact that the boat was registered in Canada, and not registered in a foreign state;
  6. As the owner of the vessel, Mr. Harrison had the obligation to register the vessel on the day he purchased the vessel in 2009;
  7. The Minister also directed me to refer to the transcript where Mr. Harrison testified and the Minister argued that that testimony is “that the vessel, since it was purchased, was always half‑used for charter”.

[58] The Minister submitted that therefore subsection 46(2) of the Act was violated.

[59] With respect to the issue of whether Mr. Harrison exercised due diligence to prevent a violation of subsection 46(2) of the Act as set out in subsection 254(1) of the Act, the Minister submitted the following:

  1. The registration documents sent by normal mail could have been lost anywhere. The Minister argued, “we are not submitting here that it was lost in Transport Canada. We can easily say it never got there. There is no evidence of this application. There is no photocopy today…”
  2. Mr. Harrison emailed Captain Gilbert on May 18, 2011, stating that he would send his application; that he did not have a copy of it; and that, at any rate, he could have re-applied.
  3. The application should have been sent by registered mail so that proof would exist that he had applied.

[60] The Minister submitted that therefore, due diligence was not exercised in order to ensure that the registration document reached Transport Canada. The Minister argued that, “when one is required to be registered or licenced, one has the responsibility to produce the evidence of that registration, or a genuine diligent effort in order to establish that he has made a good attempt”.

[61] In respect of the issue of procedural fairness associated with the admitted non-disclosure of the Minister's documentary evidence before the Review Hearing, the Minister submitted the following:

  1. That the non-disclosure of some of the Minister's evidence did not prejudice Mr. Harrison in any way, as the core of this issue was the Notice that he had received. The Minister submits that the rest of the evidence was verbal, as well as email communications between Mr. Harrison and Captain Gilbert.
  2. The Minister also argued that all of the exhibits, Exhibits M-1 to M-5, admitted into evidence is evidence of Mr. Harrison's own communication with Captain Gilbert and that, therefore, this evidence was not new to him.

[62] I then asked the Minister to clarify his submission as to the evidence the Minister was relying on to establish that the vessel was wholly owned by a Canadian citizen or a permanent resident of Canada.

[63] The Minister responded:

The evidence I am relying on is the testimony of Mr. Harrison that he owned it with his dad and his grandfather. That to me infers that he is—he is the owner. Mr. Harrison is the owner who is a Canadian citizen, but outside that I have not sought any more evidence in order to establish that he is a citizen.

B. Applicant

[64] Mr. Harrison submitted that he did “everything I can possible to do my due diligence” and that he followed every step that he was directed to by Transport Canada.

[65] He further argued that “this is almost like a witch hunt. I mean, I have never seen half of the evidence …”, and that, “their evidence I have never seen and I don't think I fairly had a chance. I have come in here to defend myself and I don't think I had—I felt ill prepared. All I have is my word

[66] He argued he is a logger and not fully engaged in the charter boat industry. He then stated that this is only the second summer that he has done more chartering than recreational fishing.

[67] He submitted that there was a failure of communication between people and different offices, and he could not explain why Ms. Mikoula did or did not send anything to Ottawa.

[68] He argued that he never told Captain Gilbert he was going to send the vessel register to him, and that he said he would send the documents that he had, which he did.

[69] He argued his boat was a pleasure craft and a family boat.

[70] Finally, he argued that he “put Salmon City Charters on the side mainly because I caught more fish than any other charter boat in Port Hardy. I got pulled over. If I had anything to hide I wouldn't have Salmon City Charters or anything on the side of my boat”.

VI. ANALYSIS

A. Vessel

[71] Based on the evidence above, I make the following findings of fact, and mixed fact and law, below.

[72] On July 16, 2011, Mr. Harrison was operating a boat called “Salmon City Charters”, registered as 6K16820, when two RCMP officers stopped this boat on the water at or near Port Hardy.

[73] Being used partly for navigation on the water, this boat is a “vessel” as defined by and for the purposes of the Act. Bearing Canadian pleasure craft licence number 6K16820, I also find that this “vessel” was also not registered, listed or otherwise recorded in a foreign state for the purposes of paragraph 46(1)(c) of the Act.

[74] Mr. Harrison and “two friends” from Idaho were engaged in fishing from this vessel on July 16, 2011. By his own admission, Mr. Harrison was engaged in a three-day charter for these two individuals. I find, therefore, that these individuals were paying passengers who chartered the vessel to engage in fishing. These individuals were not “guests” on board the vessel because the vessel was not being used exclusively for pleasure; nor were the individuals being carried on the vessel without remuneration on July 16, 2011, when the vessel was stopped by the RCMP. As Mr. Harrison testified, even though “the purpose of the boat was probably 95 per cent pleasure”, he was nonetheless, “doing some chartering just to pay for maintenance of the boat. Just to cover the boat fuel …”

[75] In short, I find that Mr. Harrison was engaged in a commercial fishing charter for two passengers from Idaho, and that therefore, he was not operating a “pleasure craft” on July 16, 2011, as defined by section 2 of the Act.

B. Ownership

[76] Mr. Harrison also testified that, although his now deceased grandfather paid for the boat and purchased it as a family boat prior to 2010, as of 2010, he owned the vessel and the boat would have been in his name. Consequently, I find that on July 16, 2011, the vessel Mr. Harrison was operating that day was wholly owned by him for the purpose of paragraph 46(1)(b) of the Act.

[77] The Minister also sought to establish, for the purposes of paragraph 46(1)(b) of the Act, that Mr. Harrison was also a Canadian citizen or permanent resident of Canada and therefore a “qualified person” (who wholly owned the vessel on July 16, 2011) as defined by section 2 of the Act.

[78] However, during the evidentiary portion of the Review Hearing, the Minister did not ask Mr. Harrison if he was a Canadian citizen or a permanent resident of Canada; nor during Mr. Harrison's own direct testimony, did Mr. Harrison indicate that he was a Canadian citizen or a permanent resident of Canada.

[79] It was only during final argument that the Minister submitted that the vessel was “owned in the family for probably at least himself, father and the grandfather and therefore, concluding here that Mr. Harrison is a citizen of Canada”.

[80] At the end of his submissions, I asked the Minister to clarify for me what evidence the Minister was relying on to establish that the vessel was wholly owned by a Canadian citizen or permanent resident of Canada. The Minister replied:

The evidence that I'm relying on is the testimony of Mr. Harrison that he owned it with his dad and his grandfather. That to me infers that he is—he is the owner. Mr. Harrison is the owner who is a Canadian citizen, but outside that I have not sought any more evidence in order to establish that he is a citizen.

[81] With respect to the Minister, I do not find it reasonable to draw an inference of fact of Canadian citizenship or permanent residence from mere ownership, or even prior joint‑ownership of the vessel. The Minister should have asked Mr. Harrison if he was born in Canada and if he was not, whether he had obtained permanent residence status or been granted Canadian citizenship by July 16, 2011.

[82] Moreover, there was also no evidence that members of his family were citizens or permanent residents either. One cannot draw an inference of fact about Mr. Harrison from another inference of fact about either his father or grandfather. One can only draw an inference of fact from another fact established in evidence. In the case at hand, the father's or the grandfather's citizenship or permanent residence status was also not established directly in the evidence. Using the established fact of their joint ownership alone is not reasonable for the purpose of drawing an inference as to the fact of either the father's, grandfather's or Mr. Harrison's citizenship or permanent residence status.

[83] The burden of proof rests with the Minister to establish on the balance of probabilities, from the evidence presented at the Review Hearing, that Mr. Harrison was a Canadian citizen or a permanent resident on July 16, 2011, in order for the vessel to be wholly owned by him as a “qualified person” (as defined by section 2 of the Act) for the purposes of paragraph 46(1)(b) of the Act.

[84] I find that insufficient evidence was led by the Minister to establish this fact on the balance of probabilities, either directly from Mr. Harrison's testimony or indirectly by inference from other facts established in evidence. Therefore, I find the Minister did not establish the required element that the vessel is wholly owned by a “qualified person”as outlined by paragraph 46(1)(b) of the Act.

C. Registration

[85] Lastly, the Minister sought to establish, on the balance of probabilities, that Mr. Harrison, as the owner of the vessel, did not “ensure” that his vessel was registered in the small vessel register (as described in subsection 43(1) of the Act) as of July 16, 2011, when he was stopped by the RCMP.

[86] Based on the evidence, I find that the RCMP were conducting inquiries into complaints from local registered salmon fishing charter vessel owners in Port Hardy, when Mr. Harrison was stopped on the water near Port Hardy on July 16, 2011. These complaints alleged that pleasure craft owners were engaging in commercial salmon fishing chartering without ensuring that their vessels were properly registered under Transport Canada's Small Vessel Program and its small vessel register (as required by section 46 of the Act).

[87] Mr. Harrison advised the investigating RCMP officers that he had taken steps to register his vessel in May 2011 in order to conduct his part-time salmon fishing chartering. Mr. Harrison was then advised by the officer that the officer would be checking with Transport Canada to determine if Mr. Harrison was indeed properly registered. However, Mr. Harrison did not hear from the RCMP again.

[88] Captain Gilbert, an investigator from Transport Canada's Nanaimo, B.C. office, later received a report from the RCMP about stopping Mr. Harrison on July 16, 2011; and it was Captain Gilbert who subsequently issued the Notice on February 14, 2012.

[89] However, based on the evidence, I find that Captain Gilbert first received complaints about Mr. Harrison from registered vessel salmon charter operators prior to May 2011. Furthermore, Captain Gilbert testified that, during the first week of May 2011, he telephoned Mr. Harrison and “laid out for him what was required in terms of the registration of the vessel…”

[90] Mr. Harrison testified that Captain Gilbert then instructed him to send his vessel registration to Ms. Mikoula, the administrator of the Small Vessel Program for B.C. She was located in Transport Canada's Kelowna office. Mr. Harrison testified that he did so by ordinary mail, and that he mailed his registration application to Ms. Mikoula before May 18, 2011. I find that Mr. Harrison's testimony in this regard was given in a forthright and credible manner, and was not contradicted by Captain Gilbert's testimony.

[91] Therefore, based on this evidence, I find it is more likely than not that Captain Gilbert instructed Mr. Harrison to send his registration application to Ms. Mikoula during their conversation in early May 2011, and that the vessel registration application was mailed to Kelowna by Mr. Harrison before May 18, 2011.

[92] Based on the evidence, Captain Gilbert also sent a follow-up email dated May 18, 2011 to Mr. Harrison (Exhibit M‑5) to remind him of his unanswered email request of May 13, 2011, which had asked Mr. Harrison to send details of his vessel registration, along with other safety credentials certificates, to Captain Gilbert at Transport Canada's Nanaimo office. Mr. Harrison sent the safety certificates after July 16, 2011 to Ms. Brown, who worked with Captain Gilbert in the Nanaimo office. However, he did not send his vessel registration application with these certificates to the Nanaimo office, because he had already mailed his original vessel registration application to Ms. Mikoula in Kelowna after his telephone conversation with Captain Gilbert instructing him to do so during the first week of May 2011. As well, it is more likely than not that he had already mailed his vessel registration application prior to receiving Captain Gilbert's follow-up email requests.

[93] The only piece of probative evidence proffered by the Minister on the issue of whether Mr. Harrison failed to ensure his vessel was registered in the small vessel register in Ottawa on July 16, 2011 is Exhibit M‑1, a one‑page Transport Canada Vessel Registration Query System report with a print-out date of December 20, 2011, indicating:

Vessel Listing

There are no records matching your criteria:

  • Owner name starts with: James Harrison.

[94] Mr. Harrison's vessel registration application was, more likely than not, made out in the name of “James” Harrison when it was sent to Ms. Mikoula in the Kelowna office because Mr. Harrison indicated that all his important registration papers and certificates were made out in the name of “James” Harrison, not “Jamie” Harrison.

[95] As such, I find as a fact that as of December 20, 2011, the small vessel register in the Registry office in Ottawa, had not received Mr. Harrison's vessel registration application, either from him directly or indirectly from Ms. Mikoula in Transport Canada's Small Vessel Program B.C. office.

[96] It is granted that the evidence does establish that Captain Gilbert queried the Registry office in Ottawa, on July 18, 2011, and again on August 26, 2011. However, in the first instance, the email query of July 18, 2011, asked for a vessel register search for “Jamie” Harrison (Exhibit M‑4), according to the subject line of that email request, and not “James” Harrison. In the reply email dated July 18, 2011 (that same day), the Assistant Registrar in Ottawa advised that no records for “the gentleman” had been received (Exhibit M-4). In respect of the second instance, when the email request dated August 26, 2011, was made by Captain Gilbert to search for “James (or Jamie) Harrison” (Exhibit M-3), the Minister did not proffer any written evidence of a reply by the Registry office in Ottawa. As such, the only evidence of any significant weight is the Registration Query System Report (Exhibit M‑1) with a print-out date of December 20, 2011 (referred to above), that was received by Captain Gilbert five months after July 16, 2011. Moreover, as Captain Gilbert admitted in his email of August 26, 2011 (Exhibit M‑3), his email query of July 18, 2011 was likely made too early given that he had just corresponded with Mr. Harrison in June 2011.

[97] In addition to his unclear queries made in July and August 2011 to the Ottawa Registry, Captain Gilbert testified that he contacted Ms. Mikoula shortly after July 16, 2011 as well, and that she informed him that she did not have any information from Mr. Harrison. As this is hearsay evidence of what Ms. Mikoula told Captain Gilbert, it has little probative value and I give it little evidentiary weight. Captain Gilbert also admitted that he received no email reply or written report from Ms. Mikoula that could have corroborated this evidence.

[98] More telling, however, is that Captain Gilbert himself discounted the truth of the hearsay evidence from Ms. Mikoula while at the Review Hearing by testifying the following:

she was functionally doing much of the administration of the Small Vessel Program. People would send their applications for getting into the Small Vessel Program to her and she would process themand file them. I inquired by telephone to her if she had any records, any knowledge of a James Harrison or Salmon City Charters. And she got back to me after a day or so and said no she had nothing. I only have a telephone conversation in this case, I do not have written confirmation (italics added).

He continued as follows:

What was going on for awhile, and I don't know if it overlaps this exact period, was that because we were getting no information sharing from the Registry office in Ottawa. For a while all – Kim and Gavin were asking all the people that were applying for the Small Vessel Program to submit their registry copies to Kelowna as well. And there may have been a short period where they were saying “submit your registry documents and we will forward them on to Ottawa”. Ottawa is the only place that can do the registry (italics added).

[99] Moreover, under cross-examination when Mr. Harrison asked if it was possible that Ms. Mikoula could have misplaced or misfiled the documentation, Captain Gilbert testified:

it's entirely possible.We did the best search that we could to find out information. When Ms. Mikoula left Transport Canada we found there was a fair number of discrepancies in the quality of her file keeping.She had hundreds of files not properly done. So it's possible that her search, which she replied to me, was unsuccessful in finding anything of you (italics added).

[100] Mr. Harrison again asked Captain Gilbert if it was possible that Ms. Mikoula misfiled, misplaced or lost his applications, and as a result did not send them to Ms. Leduc, the Assistant Registrar in Ottawa. Again, Captain Gilbert testified in response, “that's possible” (italics added).

[101] Given these admissions by Captain Gilbert (made under a rather skillful cross‑examination by Mr. Harrison, who is not a trained lawyer), coupled with the non-contradicted testimony of Mr. Harrison that he was instructed by Captain Gilbert to mail or file his original vessel registration application by mid-May to Ms. Mikoula in Kelowna, which he testified that he did, I find in fact that Ms. Mikoula, or by reasonable inference, the staff, in the Transport Canada office in Kelowna more likely than not, lost, misplaced or did not act on the vessel registration application received by Transport Canada's office in Kelowna, and that either she, or the staff, also did not forward Mr. Harrison's vessel registration application to the Registry office in Ottawa after Ms. Mikoula had represented to Mr. Harrison that she or the staff would do so.

[102] While the evidence of Mr. Harrison that Ms. Mikoula told him that she would forward his application to Ottawa is also hearsay, I find that the admission of Captain Gilbert that he knew that the staff of the Kelowna office were telling applicants that they would forward their small vessel registrations for them to the Registry office in Ottawa, to be corroborating evidence of the truth of Mr. Harrison's testimony of what Ms. Mikoula represented to him that she would do on his behalf.

[103] Even though Captain Gilbert, in his email at Exhibit M‑5, wrote to Mr. Harrison regarding the “completed application for registration which you have sent off to Ottawa”, Mr. Harrison testified that he did not send his vessel registration application directly to Ottawa; he mailed it to Ms. Mikoula in Kelowna. He also testified that he did not hear again from the RCMP after July 16, 2011, nor did he communicate with Captain Gilbert between July 16, 2011, and February 14, 2012—not until after he received the Notice. Mr. Harrison was not advised by Captain Gilbert that Captain Gilbert could not allegedly find him or his vessel registered based on his queries in July and August 2011, nor was he advised throughout the rest of 2011.

[104] From these facts in evidence, I draw the reasonable inference that Mr. Harrison had no way to know and did not suspect that his vessel registration application information had not been processed in the Kelowna office, or that it had not been forwarded to the Registry office in Ottawa during this period. He, therefore, also had no reason to contact the Registry office in Ottawa to ensure that his vessel had been registered. Mr. Harrison relied first on Captain Gilbert's instructions to send his vessel registration application to Kelowna and second, on Ms. Mikoula's representation that she or her staff would send it to Ottawa for registration. This seems to never have been done as evidenced by the Transport Canada Vessel Registration Query System report with a print-out date of December 20, 2011 (Exhibit M‑1).

[105] In terms of both fact and law, I find that the Minister has not proven, on the balance of probabilities, the required element under subsection 46(2) of the Act, which is that Mr. Harrison failed to ensure that his vessel was registered. He followed the directions and reasonably relied on the representations of Transport Canada staff and thereby took sufficient steps in the circumstances to ensure that the vessel registration application that he filed by mail with the Small Vessels Program office in Kelowna would be entered into the small vessel register in the Ottawa Registry office, as required by subsection 46(2) of the Act.

D. Additional Findings

[106] If, however, it were found that the steps taken by Mr. Harrison were not sufficient to meet the test of ensuring that the vessel is registered, I would nevertheless find that Mr. Harrison reasonably exercised due diligence to prevent contravening subsection 46(2) of the Act by attempting to register his vessel in Ottawa with Transport Canada and by relying on these same directions given, and the representations made, to him in early May 2011, by both Captain Gilbert and Ms. Mikoula of Transport Canada, in order to do so. In any event then, I would also find that Mr. Harrison exercised due diligence in the circumstances that prevailed and therefore, that he could not be found responsible for a contravention of subsection 46(2) of the Act, pursuant to section 254 of the Act.

[107] In this respect, I do not find the fact that Mr. Harrison submitted his vessel registration application by ordinary mail, rather than by registered mail, and did not keep a photocopy of it (as argued by the Minister) to detract from Mr. Harrison's exercising of due diligence to prevent failing to register his vessel in the circumstances of this case.

[108] Specifically, in the circumstances which prevailed, Mr. Harrison could hardly be reasonably expected (nor should he be legally expected) to know, presume or reasonably appreciate that Ms. Mikoula, as administrator of the small vessels program for B.C., and the Kelowna office was having the difficulties Captain Gilbert testified to or that, as could only be appreciated in hindsight, the mitigating measures of using registered mail or keeping a photocopy would be needed to prevent a contravention of the Act in the circumstances.

[109] Additionally, Mr. Harrison should not be reasonably expected to know, presume or reasonably appreciate that Captain Gilbert thought it “entirely possible”—and which I found to be more likely than not based on the evidence as outlined above—that, in fact, Mr. Harrison's vessel registration application, having been filed in Transport Canada's Kelowna office at both Captain Gilbert's and Ms. Mikoula's direction, would then be misplaced, misfiled or not acted upon there and not be sent, as promised, by Ms. Mikoula to the Registry office in Ottawa to be entered into the small vessel register.

VII. DETERMINATION

[110] The Minister has not proven, on the balance of probabilities, that subsection 46(2) of the Canada Shipping Act, 2001, was violated by Mr. Harrison on or about July 16, 2011. The monetary penalty of $1 250 is dismissed.

[111] The Minister has not proven, on the balance of probabilities, that the vessel in question was wholly owned “by qualified persons” as required under paragraph 46(1)(b) of the Act, and as defined under section 2 of the Act, because the Minister did not proffer sufficient evidence to either establish, or for me to reasonably infer as a fact, that Mr. Harrison is or was a Canadian citizen or a permanent resident of Canada on July 16, 2011.

[112] A question as to citizenship status would have determined this fact, but this question was not asked by the Minister; nor did Mr. Harrison disclose his citizenship; nor would it have been fair or appropriate for the Tribunal to ask such an elemental question to the Minister's case. Establishing citizenship or permanent residence to “qualify” an owner of a vessel to be required to be registered is an element under paragraph 46(1)(b) of the Act that must be established to find a contravention of subsection 46(2) of the Act.

[113] In addition, I find that the Minister has not proven, on the balance of probabilities, the required element under subsection 46(2) of the Act, that Mr. Harrison failed to “ensure” that his vessel was registered. In fact, he followed the directions and reasonably relied on the advice, directions and representations of Transport Canada staff, and thereby took sufficient steps in the circumstances that prevailed to “ensure” that the vessel registration application that he filed by mail with the Small Vessels Program (B.C.) office in Kelowna would be entered into the small vessel register in the Ottawa Registry office, as required by subsection 46(2) of the Act.

[114] By failing to establish all the elements necessary under subsection 46(1) of the Act as required by subsection 46(2), I therefore determine that the Minister did not discharge its burden of proof to establish that subsection 46(2) of the Act was violated on the balance of probabilities.

[115] Alternatively, I also find that Mr. Harrison nevertheless exercised due diligence to prevent violating subsection 46(2) of the Act by the reasonable steps he took to attempt to register his vessel with Transport Canada. Specifically, I find that Mr. Harrison exercised reasonable care and attention in the circumstances that prevailed by relying on and following the instructions given to him by Transport Canada staff (including both Captain Gilbert and Ms. Mikoula) to file his registration application with the Small Vessel Program office in Kelowna, B.C., and by relying on the representations made to him by Ms. Mikoula, corroborated by Captain Gilbert's evidence, that the staff of the Small Vessel Program in Transport Canada's Kelowna office would forward his vessel registration application to the Registry office in Ottawa.

[116] In addition, I find that Mr. Harrison was prejudiced by the admitted failure of the Minister to send him a disclosure package before the Review Hearing that outlined a summary of the evidence to be relied on by the Minister, including witness statements, emails and affidavits. Not all of what Captain Gilbert would eventually testify to in evidence, nor all of the emails tendered as documentary evidence through him, were within Mr. Harrison's knowledge prior to the Review Hearing. Therefore, in addition to the Notice, a disclosure package should have been provided to Mr. Harrison by the Minister in a reasonable amount of time prior to the Review Hearing. Fairness and natural justice require that an applicant to the Tribunal be given adequate notice of the case he must meet in order to sufficiently prepare to answer it, as indicated in R. v Stinchcombe, [1991] 3 SCR 326.

January 17, 2014

Alexander Phillips

Member