Decisions

TATC File No. MQ-0225-33
MoT File No. Q20110908-304-00568

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Jeannot Bernatchez, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
section 87 of the Canada Shipping Act, 2001, S.C. 2001, c. 26


Review Determination
Yves Villemaire


Decision: February 19, 2014

Citation : Bernatchez v. Canada (Minister of Transport), 2014 TATCF 8 (Review)

[Official English translation]

Heard in: Gaspé, Quebec, on November 14, 2013

I. BACKGROUND

A. Les Bateliers de Percé Inc. (TATC File No.: MQ-0223-37)

[1] On June 12, 2012, the Minister of Transport issued a Notice of Violation (Notice) to the applicant, Les Bateliers de Percé Inc., in the matter of a contravention of subsection 82(2) of the Canada Shipping Act, 2001, S.C. 2001, c. 26 (Act). The Minister imposed a penalty of $1,250 on the applicant.

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

[translation]

Violation

Penalty

Between June 19 and August 9, 2011, in the Gulf of St. Lawrence in the province of Quebec, the captain of the vessel MV HALIGONIAN II operated said vessel without ensuring that it was staffed with a crew that was sufficient and competent for the safe operation of the vessel on its intended voyage, in contravention of subsection 82(2) of the Canada Shipping Act 2001.

In particular, Mr. Jeannot Bernatchez was employed as the first mate on board the MV HALIGONIAN II despite the fact that his certificate had expired on June 19, 2011.

Pursuant to subsection 238(2) of the Canada Shipping Act, 2001, legal proceedings are being taken against the company “Les Bateliers de Percé Inc.” as the employer or principal of the captain of the vessel with regard to this violation, and thus liable for the penalty prescribed to him.

$1,250.00

[3] On July 11, 2012, the representative of the company Les Bateliers de Percé Inc. requested a review of the Minister's decision by the Transportation Appeal Tribunal of Canada (Tribunal) with regard to the aforementioned Notice.

B. Jeannot Bernatchez (TATC File No.: MQ-0225-33)

[4] On June 12, 2012, the Minister for Transport issued a Notice of Violation to the applicant, Jeannot Bernatchez, in the matter of a contravention of section 87 of the Act. The Minister imposed a penalty of $1,250 on the applicant.

[5] Schedule A of the Notice reads as follows:

[translation]

Violation

Penalty

Between June 19 and August 9, 2011, in the Gulf of St. Lawrence in the province of Quebec, Mr. Jeannot Bernatchez held a position on board a Canadian vessel, the M.V. Haligonian II, for which a certificate is required under Part 3 of the Canada Shipping Act, 2001 without being in possession of a certificate, in contravention of section 87 of said Act.

$1,250.00

[6] On June 22, 2012, Jeannot Bernatchez requested a review of the Minister's decision by the Tribunal with regard to the aforementioned Notice.

II. STATUTES AND REGULATIONS

[7] Subsections 16(1), 82(1) and (2), section 87, subsection 93(1), paragraphs 100(a) and (c), and subsections 232.1(4) and 238(2) of the Act provide:

16. (1) An application for a Canadian maritime document must be made in the form and manner, include the information and be accompanied by the documents specified by the Minister of Transport.

[...]

82. (1) The master of a Canadian vessel shall ensure that every person who is employed in a position on board presents to the master all Canadian maritime documents that they are required under this Part to have for that position.

(2) No master of a Canadian vessel shall operate it unless it is staffed with a crew that is sufficient and competent for the safe operation of the vessel on its intended voyage, and is kept so staffed during the voyage.

[...]

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.

[...]

93. (1) The authorized representative and every crew member of a Canadian vessel shall each maintain, in the form and manner and for the period specified by the Minister, a record of sea service of the member.

[...]

100. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations

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

[...]

(c) specifying the types and classes of certificates that may be issued in respect of positions on board Canadian vessels or classes of Canadian vessels;

[...]

232.1 (4) The member may confirm the Minister's decision or, subject to any regulations made under paragraph 244(h), substitute his or her own determination.

[...]

238. (2) A person or vessel is liable for a violation that is committed by an employee or agent of the person or vessel acting in the course of the employee's employment or within the scope of the agent's authority, whether or not the employee or agent who actually committed the violation is identified or proceeded against in accordance with this Act.

[8] Paragraph 212(4)(b), subsection 212(5) and section 323 of the Marine Personnel Regulations, SOR/2007-115, provide:

212. (4) Every vessel that is engaged on a voyage shall have on board, and its authorized representative shall employ,

[...]

(b) in the case of a vessel of at least 500 gross tonnage or that carries more than 50 passengers, a chief mate; and

[...]

(5) Every person who holds a certificate set out in column 1 of table 1 to this section may perform the duties of a position referred to in any of columns 2 to 5 on board a vessel that is engaged on a class of voyage set out in the heading of the column that applies to that position, subject to any limitations indicated.

[...]

323. The master of a vessel shall keep a record of every crew member's daily hours of work or hours of rest until the crew member is discharged.

[9] Paragraph 10(a) of the Fire and Boat Drills Regulations, SOR/2010-83, provides:

10. The master of a vessel that carries passengers shall, before the vessel embarks on a voyage, ensure that the following information is both communicated to him or her and recorded:

(a) the number of persons on board; and...

[10] Subsection 2(2), and items 4 and 24 of the Schedule to section 2 of the Administrative Monetary Penalties Regulations, SOR/2008-97, provide:

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.

[...]

4. These Regulations come into force on the day on which they are registered.

[...]

SCHEDULE

(Section 2)

VIOLATIONS

 

   

24.

Subsection 82(2)

1,250 to 25,000

X

III. PREMILINARY ISSUE(S)

[11] The Minister's representative agreed to use a common approach to deal with cases MQ‑0223‑37 and MQ‑0225‑33.

IV. ELEMENTS TO BE PROVEN

A. Les Bateliers de Percé Inc. (TATC File No.: MQ-0223-37)

[12] Based on the Notice, the member identified the following elements to be proven by the Minister:

a) The MV HALIGONIAN II is a Canadian vessel.

b) Les Bateliers de Percé Inc. is the employer of the captain of the MV HALIGONIAN II.

c) The captain of the MV HALIGONIAN II operated the vessel between June 19 and August 9, 2011, while not staffed with a crew that was sufficient and competent for its safe operation on a voyage at sea.

B. Jeannot Bernatchez (TATC File No.: MQ-0225-33)

[13] Based on the Notice, the member identified the following elements to be proven by the Minister:

a) The MV HALIGONIAN II is a Canadian vessel.

b) Jeannot Bernatchez was not in possession of the required certificate or failed to meet its terms and conditions between June 19 and August 9, 2011.

c) Jeannot Bernatchez held on board the MV HALIGONIAN II a position for which a certificate is required under Part 3 of the Act.

V. EVIDENCE

A. Minister of Transport

(1) Simon Pelletier

[14] Simon Pelletier testifies that he is a maritime inspector for Transport Canada and that one of his functions is to inspect vessels and enforce the regulations applicable under the Act.

[15] Inspector Pelletier testifies that on May 30, 2011, during an inspection of the CAPITAINE DUVAL II (a vessel operated by Les Bateliers de Percé Inc.) he met Mr. Bernatchez and, having noticed that the latter's certificate of competency was due to expire on June 18, 2011, reminded him, verbally and in writing, of the importance of renewing this document.

[16] In support of his testimony, Inspector Pelletier enters into evidence a Marine Safety Notice dated May 30, 2011, bearing the note [translation] “…the first mate must renew his captain's and engineer's certificate from June 18, 2011” (Exhibit M‑1).

[17] Inspector Pelletier further testifies that on May 30, 2011, he spoke by telephone with Ramona Cahill, the authorized representative, to raise, among other things, the importance of ensuring the continued validity of officers' certificates of competency, in particular that of Mr. Bernatchez.

[18] Inspector Pelletier testifies that he learned on August 3, 2011 that Mr. Bernatchez had applied to renew his certificate. Verification using the Ministry's data system on certificates (ACES) confirmed that the certificate of competency issued to Mr. Bernatchez in 2006 had expired on June 18, 2011. He explained that a new captain's certificate with limitations was not issued until August 10, 2011 (Exhibits M‑2, page 5, and M‑3, page 1).

[19] Inspector Pelletier explains that the Minimum Safe Manning Document issued to the MV HALIGONIAN II requires the first mate to have at least a first mate's certificate, gross tonnage of 150 tons (Exhibit M‑4). He adds that before it expired, the captain's certificate, gross tonnage of 150 tons, held by Mr. Bernatchez exceeded the requirements for this vessel.

[20] Therefore, Inspector Pelletier states that Mr. Bernatchez was not in possession of a valid certificate between June 19 and August 9, 2011 for the position of first mate on board the MV HALIGONIAN II.

[21] Inspector Pelletier testifies that he went to Percé on August 8, 2011 to investigate allegations that a vessel had been operated while not staffed with a crew that was sufficient and competent. During this visit, he met with Jeannot Bernatchez, Ramona Cahill and Larry Baleine, the captain of the MV HALIGONIAN II.

[22] Inspector Pelletier testifies that during this meeting, Mr. Bernatchez had admitted sailing on board the MV HALIGONIAN II between June 18 and August 8, 2011. He further testifies that Mr. Baleine had admitted operating the vessel with more than 50 passengers during this period. Finally, he testifies that Mr. Baleine and Ms. Cahill had informed him that they had received confirmation from Mr. Bernatchez that the latter had renewed his certificate.

[23] Inspector Pelletier testifies that the captains, officers and managers, including Mr. Bernatchez and Ms. Cahill, were warned several times to verify the validity of certificates of competency. In support of his testimony, he enters into evidence three warnings and a notice of deficit drawn up following the statements of Mr. Bernatchez, Mr. Baleine and Ms. Cahill (Exhibits M‑5, M‑6 and M‑7).

[24] Inspector Pelletier explains that the Act requires the captain to keep a log book or record of sea service of the crew (hereafter, the “record”)[SG1] and clarified that the format of this record is not specified. He enters into evidence the record of the MV HALIGONIAN II for the period from July 11 to August 7, 2011. This record (a personal day planner) bears the annotation [translation] “Larry and Jeannot” at the top of the majority of the pages (Exhibit M‑8). Inspector Pelletier testifies that he only obtained the record following repeated requests to the company.

[25] Inspector Pelletier enters into evidence Mr. Bernatchez's application to renew his certificate dated August 10, 2011, the inspection certificate for the MV HALIGONIAN II, the transcript of the vessel's record, the business register and advertisements for Les Bateliers de Percé Inc. (Exhibits M‑9, M‑10, M‑11, M‑12 and M‑13).

[26] Inspector Pelletier enters into evidence a letter regarding the operation of a vessel without a competent crew and a supplement to a case report in which he describes the deliberate obstruction of an inspector (Exhibit M‑14). He explains that this letter, dated July 20, 2012, was given to Ms. Cahill during a visit to Percé on September 25, 2012. He also enters into evidence Mr. Bernatchez's certificates that expired on June 18, 2011, specifying the names of the vessels on which he was authorized to work (Exhibit M‑15).

B. Applicants

(1) Ramona Cahill

[27] Ramona Cahill, in the name of Gestion Cahill Inc., the authorized representative of the MV HALIGONIAN II, is the Deputy Director of Les Bateliers de Percé Inc. (Exhibit M‑11).

[28] Ms. Cahill explain that the violation in question is the only penalty that has been imposed on the company Les Bateliers de Percé Inc. since its incorporation in 1994, given that it always complies with the regulations in force, in particular those concerning officers' certificates of competency.

[29] Ms. Cahill suggests that health problems which had caused Mr. Bernatchez to be absent in the month of June 2011 would explain any breach of regulations on the part of this employee. She states that Mr. Bernatchez had proven himself to be very reliable over the course of his 18 years of service for the company. She testifies that she was convinced that Mr. Bernatchez's certificate had been renewed because he had taken the necessary steps following Inspector Pelletier's reminder. She said that this is a first violation for the company as well as for Mr. Bernatchez. She stated that the company [translation] “did its part” by reminding Mr. Bernatchez to renew his certificate.

[30] Ms. Cahill explains that the crews set sail from l'Anse-à-Beaufils early in the morning and travel as far as Percé, where they moor the vessels while waiting for customers. The choice of vessel and allocation of crew depends on the number of passengers on board. When busloads of tourists arrive, for example, the vessel most suitable for carrying a larger number of customers is chosen.

[31] Ms. Cahill states that with fewer than 50 passengers, only a captain and a seaman are required on board the MV HALIGONIAN II. She testifies that when the vessel undertook a sea voyage with more than 50 passengers during the period in question, a certified first mate replaced Mr. Bernatchez.

[32] During cross-examination, Ms. Cahill further explains that, at the company's request, Inspector Pelletier authorizes other captains to sail on the vessel in order to enable these exchanges. She contends that if Mr. Bernatchez remained on board, he acted as a third officer.

[33] Ms. Cahill testifies that she interprets the practice of Mr. Baleine, the appointed captain of the MV HALIGONIAN II, of writing his name and that of the first lieutenant at the top of the record as the representation of the crew during the voyage from l'Anse-à-Beaufils to Percé at the beginning of the day only. She suggests that Mr. Baleine had neglected to reflect subsequent changes to the crew over the course of the day during the period in question.

[34] During cross-examination, Ms. Cahill states that she can confirm that Mr. Baleine held the position of captain, but not that Mr. Bernatchez held the position of first mate as indicated in the record.

(2) Kevin Cahill

[35] Kevin Cahill is a manager for the company Les Bateliers de Percé Inc. He states that [translation] “we never let a vessel sail without a captain and the required crew”. He explains that a dispatcher, Danny Simoneau, manages the allocation of crew to ensure safe voyages.

[36] Mr. Cahill testifies that all officers were in possession of the certificates required for service.

(3) Jeannot Bernatchez

[37] Jeannot Bernatchez admits having committed [translation] “an offence”. He testifies that he has informed Ms. Cahill of his application to renew his certificate.

[38] Jeannot Bernatchez testifies that he has held the position of third officer on the vessels DELGA and CAPITAINE DUVAL when necessary.

VI. ARGUMENTS

A. Minister of Transport

[39] The Minister's representative claims that the Minister's mandate, pursuant to section 6 of the Act, compels him to set up an effective programme of inspection and enforcement of the Act. Furthermore, she claims that pursuant to subsection 16(1) of the Act, the Minister may prescribe the format for requested documents such as the record.

[40] The Minister's representative claims that pursuant to paragraphs 100(a) and (c) of the Act and section 212 of the Maritime Personnel Regulations, the Minister may specify the positions that must be held on board vessels and the certificates required for these positions. She claims that the evidence, based in part on the record, demonstrates that the captain of the MV HALIGONIAN II committed a violation by operating the vessel with more than 50 passengers, without ensuring that there was a certified first mate, in contravention of subsection 82(2) of the Act.

[41] The Minister's representative holds that the company Les Bateliers de Percé Inc. is liable for the captain's offence in this regard, pursuant to subsection 238(2) of the Act.

[42] The Minister's representative claims that Mr. Bernatchez held the position of first mate on board the MV HALIGONIAN II while the vessel was carrying more than 50 passengers without being in possession of the required certificate, in contravention of section 87 of the Act.

[43] The Minister's representative refutes the argument that the names entered at the top of the record do not represent the composition of the crew for all the voyages undertaken over the course of a day. She states that pursuant to section 323 of the Maritime Personnel Regulations, the captain must record the name of each member of the crew and that any breach of this obligation would give rise to another violation.

[44] The Minister's representative claims that having ignored verbal and written reminders given proactively by Inspector Pelletier to Ms. Cahill and Mr. Bernatchez regarding the renewal of the latter's certificate constitutes an aggravating factor.

[45] The Minister's representative holds that the Tribunal should reject the application for leniency submitted by the applicant due to the presence of aggravating factors and the imposition of the minimum penalty permitted under the regulations. She adds that a penalty for each voyage, or each day, could have been imposed as provided for under section 4 of the Administrative Monetary Penalties Regulations.

[46] The Minister's representative makes reference to the decision Abbie Isle Seafoods Ltd. v. Canada (Minister of Transport), 2013 TATCE 28, file no. MA-0232-37 (review) (Abbie Isle Seafoods). This decision mentions in paragraph 49 that compliance with the law is not an option, but an obligation. Further, paragraph 47 of this decision mentions that a new penalty may be issued pursuant to the Administrative Monetary Penalties Regulations for each day of non-compliance, demonstrating the importance of such a violation to the Canadian Parliament.

[47] The Minister's representative makes reference to the decision Ralph v. Canada (Minister of Transport), 2011 TATCE 1, file no. MA-0032-33 (review) (Shawn Ralph). This decision mentions in paragraph 40 that given his experience, the applicant should have known the expiry date of the Canadian maritime document.

[48] The Minister's representative also makes reference to the decision Paul-René Caron v. Canada (Minister of Transport), 2012 TATCE 8, file no. MQ-0078-33 (review) (Paul-René Caron). This decision mentions in paragraph 56 that an experienced captain should realize the importance of complying with the requirements of the Maritime Personnel Regulations.

B. Applicants

[49] Ms. Cahill contends that it was not established at the hearing that Mr. Bernatchez held the position of first mate when the MV HALIGONIAN II carried more than 50 passengers. This was the case even though Inspector Pelletier had the ability to find Mr. Bernatchez at fault.

[50] Ms. Cahill admits that the information entered in the record is flawed, but suggests that the Maritime Personnel Regulations allow for interpretation and that the document does not demonstrate any attempt to falsify the number of passengers on board. She holds that the responsibility for correctly entering the names of officers in the register belonged to the captain, Mr. Baleine.

[51] Ms. Cahill suggests that Mr. Baleine had merely neglected to record in the log book changes to the crew over the course of the day. She admits [translation] “…that a violation was probably committed…” but requests leniency from the Tribunal, taking into account the efforts demonstrated previously to comply with the requirements of Transport Canada and a 30‑year record of operations without incident.

[52] Mr. Bernatchez admits that his certificate had not been renewed at the time of Inspector Pelletier's visit. He testifies that personal problems had delayed the necessary steps for renewal. He reiterates that it was Mr. Simoneau, the dispatcher, who decided on the allocation of crew and that he had only held the position of first mate when [translation] “…his papers were in order…”.

VII. ANALYSIS

[53] The evidence demonstrates that the MV HALIGONIAN II is a Canadian vessel (Exhibit M‑11). Therefore, the member concludes that the Minister has proven, on a balance of probabilities, the first element of the alleged contravention by the applicants (file nos. MQ-0223-37 and MQ-0225-33).

[54] The evidence demonstrates that Les Bateliers de Percé Inc. is the employer of the captain of the MV HALIGONIAN II (Exhibits M‑11 and M‑12). Therefore, the member concludes that the Minister has proven, on a balance of probabilities, the second element of the alleged contravention by the applicant in file no. MQ-0223-37.

[55] The evidence demonstrates that Mr. Bernatchez was not in possession of the required certificate or failed to respect its terms and conditions between June 19 and August 9, 2011 and this was not contested (Exhibit M‑2, page 5). Therefore, the member concludes that the Minister has proven, on a balance of probabilities, the second element of the alleged contravention by the applicant in file no. MQ-0225-33.

[56] The evidence, which was also not contested, demonstrates that the MV HALIGONIAN II undertook approximately 22 voyages with more than 50 passengers (Exhibit M‑8). Therefore, pursuant to paragraph 212(4)(b) and subsection 212(5) of the Maritime Personnel Regulations, the crew had to include an appropriately certified first mate. The vessel's Minimum Safe Manning Document requires the first mate to possess a first mate's certificate, gross tonnage of 150 tons (Exhibit M‑4).

[57] Inspector Pelletier testified that he accepted the record completed by Mr. Baleine pursuant to the Act, the Maritime Personnel Regulations and the Fire and Boat Drills Regulations. With regard to the latter, paragraph 10(a) requires the number of persons on board a vessel carrying passengers to be recorded. The evidence has demonstrated that this obligation was respected.

[58] However, the authorized representative's compliance with the obligations arising from subsection 93(1) of the Act, which requires a record of sea service to be kept for each member of the crew, and those arising from section 323 of the Maritime Personnel Regulations, which requires the captain to keep a record of the hours worked by crew members, is not clearly demonstrated by the evidence.

[59] In view of the foregoing, and in particular the annotations “Larry [and] Jeannot” entered at the top of the record, the Minister's representative holds that Mr. Bernatchez held the position of first mate on board the MV HALIGONIAN II despite the fact that his certificate had expired and while the vessel was carrying more than 50 passengers.

[60] The applicant's testimony demonstrates, however, that the annotations “Larry [and] Jeannot” could represent only the transit crew of the MV HALIGONIAN II between l'Anse-à-Beaufils and Percé during the period from July 11 to August 7, 2011.

[61] Ms. Cahill and Mr. Cahill describe an operating practice whereby, having moored the vessel, the crew of the MV HALIGONIAN II disembark and wait for customers with crew members from other vessels in the fleet of Les Bateliers de Percé Inc. They explain that the choice of vessel and the allocation of crew depends on the number of passengers on board and factors such as compliance with the requirements regarding officers' certificates of competency.

[62] Ms. Cahill contends that Mr. Bernatchez did not necessarily hold the position of first mate on the MV HALIGONIAN II throughout the day for the period covered by the annotations. She attributes any confusion regarding the identity of the first mate during each of the voyages to Mr. Baleine's neglecting to enter the appropriate names in the record.

[63] Inspector Pelletier testified that Mr. Bernatchez had admitted to him [translation] “…having been on the vessel between June 18 and August 8, 2011…”. During the hearing, Mr. Bernatchez admitted not having renewed his certificate for personal reasons before the expiry date. He maintained, however, that he had only held the position of first mate on board the MV HALIGONIAN II during the period in question on voyages with fewer than 50 passengers.

[64] The parties therefore agree to interpret the annotation “Larry [and] Jeannot” as identifying respectively the captain and the first mate. However, the respondent believes that only Mr. Bernatchez held the position of first mate during the period in question, whereas the applicant suggests that other, appropriately certified persons held this position, but their names were not entered in the record.

[65] Since the parties also agree on the fact that the MV HALIGONIAN II undertook voyages with more than 50 passengers between June 18 and August 8, 2011, the issue is whether Mr. Bernatchez or a replacement held the position of first mate during these voyages.

[66] The careless nature of the entries in the record suggests a lack of rigour in applying subsection 93(1) of the Act, article 323 of the Maritime Personnel Regulations and paragraph 10a) of the Fire and Boat Drills Regulations.

[67] The Minister's representative proposes that the submission of an incomplete record opens the door to other violations. Since the Notice of Violation only mentions subsection 82(2) and section 87 of the Act, the member rejects this proposition. The admission of Ms. Cahill regarding her inability to confirm whether Mr. Bernatchez held the position of first mate is insufficient to prove a contravention of sections 82 and 87, since it leaves room for doubt as to the identity of this officer.

[68] Furthermore, taking into account the aforementioned lack of rigour, the explanation provided by the applicant that the captain was merely careless in entering in the record the name of Mr. Bernatchez's replacement as first mate seems plausible.

[69] The applicant further demonstrated that the Minister accepted as a register informal presentation in an ordinary day planner despite the fact that, pursuant to subsection 16(1) of the Act, the Minister may prescribe the format of a Canadian maritime document.

[70] The member considers that Inspector Pelletier risked creating reasonable expectations on the part of the applicant by accepting a clear lack of rigour in the completion of the record, while compliance with regulatory obligations could be ensured without creating an unreasonable administrative burden.

[71] However, the same laxity tolerated by Les Bateliers de Percé Inc. in the completion of the record causes the member to doubt the words of the applicant describing a process of rigorous compliance with regulations by the crew of officers when the number of passengers exceeded 50 during the voyage.

[72] Inspector Pelletier testified to the hearing that during his meeting with Mr. Bernatchez, the latter had merely admitted having sailed on board the MV HALIGONIAN II between June 18 and August 8, 2011. However, his warning (Exhibit M‑5) includes the more specific and relevant note: [translation] “Mr. Bernatchez…informs me that he has acted as first mate on the HALIGONIANwhen it was carrying more than 50 passengers to empty the island”. The member gives preference to the Inspector's note written at the time of his meeting with Mr. Bernatchez.

[73] Ms. Cahill stated that she believed that Mr. Bernatchez had renewed his certificate even though that was not the case. The facts and the testimony lead the member to doubt that the dispatcher, Mr. Simoneau, was better informed in this regard. Hence, the member is inclined to accept the proposition that Mr. Bernatchez had held the position of first mate as indicated in the record, even when the vessel was carrying more than 50 passengers.

[74] Verifying the validity of Mr. Bernatchez's certificate of competency was the direct responsibility of Mr. Baleine and the indirect responsibility of Ms. Cahill pursuant, respectively, to subsections 82(2) and 238(2) of the Act. The member accepts the proposition of the Minister's representative that having ignored Inspector Pelletier's verbal and written reminders constitutes an aggravating factor.

[75] Ms. Cahill applied for leniency from the Tribunal taking into account the reminder given to Mr. Bernatchez to renew his certificate and the efforts demonstrated previously to comply with the requirements of Transport Canada. However, the requirements of the Act in subsections 82(2) and 238(2) clearly set out the obligation of the captain and the employer regarding the operation of a vessel while not staffed with a crew that is sufficient and competent on its intended voyage. The member considers that strict application of these requirements is necessary, particularly in the case of a passenger vessel.

[76] The member considers that the jurisprudence cited by the Minister's representative is only partially applicable. In the present case, unlike in Shawn Ralph and Paul-René Caron, the applicant has admitted understanding the requirements of the regulations and claims to have complied with them.

[77] However, the member considers as relevant the Abbie Isle Seafoods decision, which describes the obligatory nature of compliance with the law and the importance placed by the Canadian Parliament through the imposition of repeated penalties. The essential character of section 6 of the Act and the presence of aggravating factors would even allow to consider, as a deterrent, an increase in the penalty pursuant to subsection 232.1(4) of the Act. However, the company's good conduct in the past and the Minister's tolerance of the informal presentation of the record—which may have created reasonable expectations on the part of the applicant—constitute mitigating factors.

[78] The member therefore considers that Mr. Bernatchez held a position on board the MV HALIGONIAN II for which a certificate was required under part 3 of the Act and that, between June 19 and August 9, 2011, the captain operated the vessel while it was not staffed with a crew that was sufficient and competent for its safe operation on a voyage at sea. Therefore, the member concludes that the Minister has proven, on a balance of probabilities, the third element of the alleged contravention by the applicants (file nos. MQ-0223-37 and MQ‑0225-33).

VIII. DETERMINATION

A. Les Bateliers de Percé Inc.

[79] The member confirms the Minister of Transport's decision as set out in the Notice of Violation dated June 12, 2012. 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.

B. Jeannot Bernatchez

[80] The member confirms the Minister of Transport's decision as set out in the Notice of Violation dated June 12, 2012. 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.

February 19, 2014

Yves Villemaire

Member