Decisions

TATC File No. MO-0242-33
MoT File No. 020120829-406-00861

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

John Daniel MacNeill, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Simon P. Barker


Decision: May 8, 2014

Citation: MacNeill v. Canada (Minister of Transport), 2014 TATCE 16 (Review)

Heard in: Sarnia, Ontario, on November 19, 2013

REVIEW DETERMINATION AND REASONS

Held:  The Minister did not prove, on the balance of probabilities, that John Daniel MacNeill was employed on board a Canadian vessel in a position that required a certificate, thereby contravening section 87 of the Canada Shipping Act, 2001. The monetary penalty of $1,250 imposed by the Minister is dismissed.

I.  BACKGROUND

[1] On September 6, 2012, the Minister of Transport (Minister) issued a Notice of Violation to Mr. John Daniel MacNeill for a contravention of section 87 of the Canada Shipping Act, 2001, S.C. 2001, c. 26 (Act). It is alleged that on or about April 20, 2012, Mr. MacNeill was employed on board a Canadian vessel in a position that required a certificate.

[2] Schedule A of the Notice of Violation states the following:

On or about April 20, 2012, at or near the town of Point Edwards in the province of Ontario, John Daniel MacNeill was employed on board a Canadian vessel, namely, the “ASI Tender” Official Number 827051, in a position in respect to which a certificate is required under Part 3 of the Canada Shipping Act, 2001, without holding that certificate, thereby contravening section 87 of that Act.

Penalty $1,250

[3] On September 18, 2012, the Applicant filed a request for a review with the Transportation Appeal Tribunal of Canada (Tribunal).

II.  STATUTES AND REGULATIONS

[4] Section 6 of the Act stipulates:

The objectives of this Act are to

(a) protect the health and well-being of individuals, including the crews of vessels, who participate in marine transportation and commerce;

(b) promote safety in marine transportation and recreational boating;

(c) protect the marine environment from damage due to navigation and shipping activities;

(d) develop a regulatory scheme that encourages viable, effective and economical marine transportation and commerce;

(e) promote an efficient marine transportation system;

(f) develop a regulatory scheme that encourages the viable, effective and economical use of Canadian waters by recreational boaters;

(g) ensure that Canada can meet its international obligations under bilateral and multilateral agreements with respect to navigation and shipping;

(h) encourage the harmonization of marine practices; and

(i) establish an effective inspection and enforcement program.

[5] Section 87 of the Act stipulates:

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.

[6] The Marine Personnel Regulations,SOR/2007-115 (MPRs),paragraph 212(4)(a), subsection 212(5), and Table 1 stipulate:

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

(a) subject to subsection (6), a master;

[…]

(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.

TABLE 1

MASTER AND MATE CERTIFICATES

Item Column 1 Column 2 Column 3 Column 4 Column 5
Certificate Unlimited Voyage Near Coastal Voyage, Class 1 Near Coastal Voyage, Class 2 Sheltered Waters Voyage
16 Master, Limited for a vessel of less than 60 gross tonnage N/A N/A Master, on any vessel of less than 60 gross tonnage of a type, tonnage, area and period of operation specified on the certificate Master, on any vessel of less than 60 gross tonnage of a type, tonnage, area and period of operation specified on the certificate
19 Pleasure Craft Operator Card N/A N/A Operator, vessel of not more than 8 m in overall length that is not a passenger-carrying vessel and that is engaged on a voyage not more than two nautical miles from shore (except tugs) Operator, vessel of not more than 8 m in overall length (except tugs) carrying six or fewer passengers

III.  ELEMENTS TO BE PROVEN

[7] Upon reviewing section 87 of the Act, I identified the following elements that needed to be proven by the Minister in order to make her case:

  • A Canadian vessel was involved;
  • Mr. MacNeill was employed in a position on board that Canadian vessel;
  • The position that Mr. MacNeill held, as a result of being so employed, needed to be one that required a certificate, and
  • If Mr. MacNeill was employed in a position that required a certificate, that he did not hold the necessary certificate; or if he did hold the certificate, that he did not comply with its terms and conditions.

IV.  EVIDENCE

[8] The parties were unable to agree on a statement of facts regarding this matter. Such a document would have been helpful to the Tribunal in this instance, given that the parties did agree, at the hearing, with a number of the facts that were subsequently introduced.

A. Minister

(1) Captain Syed Zahid Ali

[9] The Minister's first and only witness was Captain Syed Zahid Ali.

[10] Captain Ali is a senior marine safety inspector with Transport Canada Marine Safety and has been an inspector with the department for over five years. In addition to being an inspector, Captain Ali is also a nautical examiner, a pollution prevention officer and an accident investigator. Prior to joining the Canadian public service, Captain Ali was a seafarer, working on board ships in the Great Lakes and on the east coast of Canada, and before that, internationally.

[11] Captain Ali is currently assigned to the Compliance and Enforcement Unit at Transport Canada Marine Safety in Sarnia, Ontario. In April 2012, Captain Ali was assigned to investigate a pollution incident that occurred on April 20, 2012 at the Bridgeview marina in Point Edwards, Ontario.

[12] Captain Ali's evidence is that he discovered, during the course of his investigation, that the applicant, Mr. MacNeill, had operated the vessel ASI Tender without the required certification. It was the evidence of Captain Ali that operating the ASI Tender required the operator to have at least a certificate of “Master, Limited for a vessel of less than 60 gross tonnage” and that Mr. MacNeill did not have that certificate. Captain Ali stated that, on April 20, 2012, Mr. MacNeill held nothing other than a Pleasure Craft Operator Card.

[13] During the course of his testimony, Captain Ali presented 11 exhibits.

Exhibit M-1

[14] The first of the Minister's exhibits was a copy of the transcript of registry of the ASI Tender. The exhibit consisted of a certified copy of the transcript, in addition to the electronic entry as it appears in the Vessel Registration Query System, found on the Transport Canada website. The factual details on both documents are the same.

[15] The documents were offered to prove that the ASI Tender is a Canadian vessel with the official number of 827051. It is a workboat, built in 1987, and is formerly known as the Allege 15. It has two diesel engines, a length of 13.2 metres, a breadth of 4.1 metres and a depth of 1.02 metres. The vessel's gross tonnage is 57.17 cubic meters and all 64 shares in the vessel are owned by the ASI Group Ltd. (hereafter ASI), of St. Catharines, Ontario. The exhibit also identified ASI as the vessel's authorized representative.

Exhibit M-2

[16] The second exhibit presented was an inspection certificate for the vessel, dated May 17, 2010. This certificate is valid for four years and was issued for a vessel exceeding 15 tons gross tonnage but not exceeding 150 tons gross tonnage, plying as a non-passenger vessel. The certificate is limited in that it only applies to voyages in sheltered waters.

Exhibit M-3

[17] The Minister's third exhibit was a copy of Mr. MacNeill's Ontario Driver's Licence. In addition, the exhibit included a copy of the Canadian Coast Guard Pleasure Craft Operator Card issued to Mr. MacNeill on March 31, 1999, by Canadian Power & Sail Squadrons.

[18] Captain Ali's evidence was that a Pleasure Craft Operator Card, of the kind issued to Mr. MacNeill, would only allow him to operate a vessel of not more than eight metres in length in sheltered waters and that the ASI Tender was a vessel of more than eight metres in length.

[19] Under cross-examination by Mr. MacNeill, Captain Ali confirmed that a Pleasure Craft Operator Card allows a person to operate a pleasure craft of any size and that the limitation that Captain Ali was referring to “of not more than eight metres in length in sheltered waters”, was only applicable to commercial vessels.

Exhibit M-4

[20] Captain Ali gave evidence that Transport Canada Marine Safety had searched their electronic database, named the Automated Certification and Examination System (ACES), in which the department maintains all the credentials, certification and training details of candidates in accordance with the MPRs, and had found no entry for Mr. MacNeill. A copy of the search result was presented as the Minister's fourth exhibit.

Exhibits M-5 and M-6

[21] During the course of his investigation, Captain Ali took two statements from Mr. MacNeill. The first statement was taken on April 23, 2012 and was presented as Exhibit M‑5. The second statement was taken on April 27, 2012 and was presented as Exhibit M-6.

[22] The first statement indicates that on April 20, 2012, a person by the name of Cole, with ASI, picked up Mr. MacNeill, a service technician with Bridgeview Yachts Inc., and drove him over to the ASI dock, also known as the government dock, in Sarnia, Ontario. There Mr. MacNeill started up a boat, tender # 13D9362, and moved it to a dock at the Bridgeview marina.

[23] The first statement also indicates that the reason the boat was taken to the Bridgeview marina was to repair a leak on the return fuel line of the port-side engine. Bridgeview Yachts Inc. had a repair facility located at the marina. The statement goes on to describe the work done by Mr. MacNeill at the marina.

[24] As for the second statement, Captain Ali's evidence was that there was a second individual from Transport Canada present, a Captain Kaushlesh Srivastava, when he took this statement from Mr. MacNeill four days later. Captain Srivastava was not, however, called as a witness at the hearing.

[25] The second statement indicates that Mr. MacNeill admitted to the two government inspectors, Captains Ali and Srivastava, that he had moved the boat from the government dock to the Bridgeview marina.

[26] The second statement goes on to say that Mr. MacNeill knew the boat was a commercial vessel, but that his understanding was that moving the boat for the purpose of repair did not constitute a commercial operation, and that he did not know a higher licence was required to operate the boat.

[27] Mr. MacNeill's services were requested by ASI to avoid bringing the qualified master for the boat from St. Catharines, Ontario. The second statement concludes by describing the oil spill that is said to have occurred at the marina on April 20, 2012.

Exhibit M-7

[28] The seventh exhibit presented by Captain Ali consisted of a string of e-mail messages, dated April 19 and 20, 2012,exchanged between Mr. MacNeill and Scott Black, identified as a senior operations manager with the Marine Services Group at ASI.

[29] Mr. Black was not called as a witness at the hearing by either party.

[30] The exchange of e-mail messages back and forth between Mr. MacNeill and Mr. Black confirmed ASI's request that Mr. MacNeill should go ahead and replace the leaking return line and that, with one of Mr. Black's “guys” to crew the boat, Mr. MacNeill should drive the boat to his slip at the Bridgeview marina for ASI.

Exhibits M-8 and M-9

[31] The eighth exhibit presented by Captain Ali consisted of a string of e-mail messages exchanged between himself and Mr. Black of ASI. These messages addressed the contractual relationship between ASI and Bridgeview Yachts Inc.

[32] A copy of an invoice from Bridgeview Yachts Inc., describing the work carried out by Mr. MacNeill, was numbered 1407 and dated April 30, 2012. It was attached to Mr. Black's e‑mail message dated May 16, 2012, and was presented by Captain Ali as a separate exhibit, numbered M-9.

[33] The invoice was presented as evidence that the ASI Tender was moved and that Bridgeview Yachts Inc. charged ASI for the move from the government dock to the marina.

[34] Captain Ali's evidence was that the ASI Tender was in need of repair at the government dock and that there were no repair facilities there, so the vessel had to go to the Bridgeview marina to be repaired.

Exhibits M-10 and M-11

[35] The final two exhibits presented by Captain Ali were aerial pictures sourced from the maps.google.com website showing a part of the waterway in Sarnia, Ontario. Exhibit M-10 showed the route taken by the ASI Tender as it moved from the government dock to the dock at the Bridgeview marina. Exhibit M-11 showed a more detailed view of both the marina and the repair facility at Bridgeview.

[36] The Minister elected not to call her second witness, Obeid Barlas.

B. Applicant

(1) John Daniel MacNeill

[37] Mr. MacNeill decided to take the witness stand and present evidence on his own behalf. He presented no exhibits.

[38] Mr. MacNeill is a marine mechanic or, to use today's terminology, a service technician. He is not a seafarer. Mr. MacNeill gave evidence that he did not need a certificate to operate as a marine mechanic and I accept that evidence, having heard nothing contrary from the Minister. He is also a licensed auto mechanic. He has worked as a mechanic for more than 30 years and in 1996, he decided to concentrate on things “marine”.

[39] Mr. MacNeill gave evidence that he is self-employed, that he has worked at the Bridgeview marina as a technician “on and off” as a contractor with Bridgeview Yachts Inc., and that his work there included manufacturer's warranty work, for which he did hold a certificate.

[40] Mr. MacNeill indicated that he was familiar with the ASI Tender. He described the workboat as a surplus Canadian Coast Guard vessel. He re-built the vessel's two diesel engines and in so doing, developed a relationship with ASI and with Mr. Black.

[41] Mr. MacNeill stated that on April 20, 2012, he moved the workboat from the government dock in Sarnia, Ontario, to the Bridgeview marina and that the reason he did so was to repair a fuel leak on the return line of the port-side engine.

[42] He indicated that the government dock was not a good place to undertake a repair because “we can get a fair bit of wave action in there depending on the winds and the boat traffic”. He felt that the repair would be better carried out at the marina where he had a sheltered dock on both sides of the vessel.

[43] Mr. MacNeill said that ASI had asked him to take the boat over to the marina for them, as ASI didn't want to bring their “skipper” up from St. Catharines to do the work.

[44] During the course of his evidence, Mr. MacNeill made reference to Exhibit M-9, the invoice generated by Bridgeview Yachts Inc. for ASI. Mr. MacNeill stated that he gave Bridgeview Yachts Inc. the information they needed to “populate” the invoice but that the invoice was not his; that he was working for Bridgeview Yachts Inc. in this instance and that they were, in turn, working for ASI. Mr. MacNeill's evidence was that he was paid a percentage of what Bridgeview Yachts Inc. was paid, or charged ASI, and that he was neither an employee of, nor working under contract with, ASI.

V.  ARGUMENTS

A. Minister

[45] The Minister submitted that the evidence provided showed that, on the balance of probabilities, Mr. MacNeill had contravened section 87 of the Act. She argued that all of the elements of the offence had been proven.

[46] The evidence, she said, proved that the ASI Tender was a Canadian vessel of more than eight metres in length and less than 60 tons in weight, and that it had to be operated by a certified captain with at least a Master's limited certificate.

[47] The evidence, the Minister argued, proved that Mr. MacNeill had operated the vessel on April 20, 2012 without a valid certificate of competency. Also, at the time of the violation, Mr. MacNeill only held a Pleasure Craft Operator Card. The Minister submitted that, under the MPRs, the Pleasure Craft Operator Card only allows its holder to operate a vessel that is less than eight metres long.

[48] During the course of her argument, the Minister directed my attention to section 6 of the Act, and the objectives of the legislation. There are nine objectives in total and the Minister directed me to four of them. The first was the need to protect individuals who participate in marine transportation and commerce. The second objective was the need to promote safety. The third objective that the Minister directed me to was the need to protect the marine environment, and the fourth of the nine objectives was the need to establish an effective inspection and enforcement program.

B. Applicant

[49] Mr. MacNeill admitted that he did move the ASI Tender from the government dock in Sarnia, Ontario, to the Bridgeview marina.

[50] He stated that he did so at the request of ASI and that at the time, he believed he was moving the vessel in his capacity as a marine mechanic. He further stated that had he needed a certificate to undertake the move, Mr. Black of ASI should have advised him of that fact and he did not.

VI.  SANCTION

[51] The Minister directed me to the Administrative Monetary Penalties Regulations, SOR/2008-97,and in particular, to the item numbered 26 in the Schedule. The penalty for a contravention of section 87 of the Act, which comprises the allegation against Mr. MacNeill, ranges from $1,250 to $5,000.

[52] In this instance, Mr. MacNeill was assessed the minimum penalty.

[53] Mr. MacNeill accepted, if the Minister's case is made and the allegation against him is proven, that the minimum penalty is appropriate in this instance.

VII.  ANALYSIS

[54] The Minister's exhibit numbered M-1 was offered as evidence of the fact that the ASI Tender is, and was on the day that it was moved to the Bridgeview marina, a Canadian vessel. I accept that evidence.

[55] By his own evidence, Mr. MacNeill admitted that he moved the vessel on April 20, 2012.

[56] He did so, according to his evidence, to repair a fuel leak on the return line of the port‑side engine. Captain Ali corroborated Mr. MacNeill's evidence, confirming that the ASI Tender was in need of repair at the government dock, that there were no repair facilities there, and that as a result, the vessel had to go over to the Bridgeview marina to be repaired.

[57] Mr. MacNeill admitted he knew that the ASI Tender was a commercial vessel. He gave evidence that he was familiar with the workboat, having worked on its engines.

[58] Neither the Act nor the MPRs define the term “voyage”. The common dictionary meaning of the term talks of “a journey, particularly a long one, by sea or water”.

[59] The evidence offered by both of the witnesses, Captain Ali and Mr. MacNeill, was that, on April 20, 2012, the ASI Tender was not engaged on a voyage but was simply being moved by a marine mechanic, and one other person, within the confines of a very sheltered waterway from one point to another, to effect a better repair.

[60] No evidence was presented to indicate that the workboat was used for a commercial purpose while it was being moved to the marina, nor that it was being operated for pleasure purposes at the time.

[61] The Minister introduced as evidence various e-mail messages, numbered as Exhibits M-7 and M-8. The first set, those numbered M-7, were messages exchanged between Mr. MacNeill and Mr. Black of ASI. The second set, numbered M-8, were messages exchanged between Captain Ali and Mr. Black.

[62] Mr. Black was not called as a witness at the hearing by either party.

[63] Contained in the messages are statements made by someone who is not giving testimony in the proceeding. Those statements are, by definition, hearsay. The rule against hearsay is an example of one of the many legal or technical rules of evidence developed for courts to help them accomplish their mandates.

[64] These rules, however, do not necessarily serve the purpose of an administrative tribunal. Hearsay evidence can be of value, especially if verified or corroborated by other evidence, or if it forms the corroboration of some other evidence.

[65] I find that to be the case here. Both Captain Ali and Mr. MacNeill gave evidence at the hearing corroborating the statements made by Mr. Black. Despite the fact that he was not present at the hearing, I accept the statements contained in Mr. Black's messages, as corroborated by Captain Ali and Mr. MacNeill.

[66] Exhibit M-7 proves the fact that Mr. MacNeill was hired as a marine mechanic to repair the leaking fuel line. The vessel was moved to create a more solid platform from which to repair it. It was Mr. MacNeill's evidence that the government dock could “get a fair bit of wave action… depending on the winds and the boat traffic”.

[67] Mr. MacNeill was not hired by ASI to “skipper” the vessel. In fact, he was not hired by ASI to do anything at all. Exhibit M-8 was offered as evidence of the contractual relationship between ASI and Bridgeview Yachts Inc. for repair of the vessel. Mr. MacNeill worked for Bridgeview Yachts Inc.

[68] No evidence was presented at the hearing by the Minister to prove that Mr. MacNeill was employed as a seafarer in a position on board the ASI Tender.

[69] In her closing argument, the Minister suggested that I give a wide interpretation to the words in section 87 of the Act, and in particular to the word “employ”. She suggested that I take notice of the French text, which uses the word “occupant” instead of “employ”. It was her submission that it mattered not whether Mr. MacNeill was employed in a position that required a certificate. What mattered was that he occupied a position on board that required a certificate. Even if that is correct, a wide reading of the text in such a way would not have changed my decision in this instance.

[70] Mr. MacNeill did not need a certificate to take the boat over to the marina that April day. During the move to the marina, Mr. MacNeill was acting in his capacity as a marine mechanic, moving a vessel that needed repair, from one dock to another to better effect a repair; he was acting in a capacity that did not require him to hold a certificate. The evidence of both Captain Ali and Mr. MacNeill was that the move to the marina was an integral part of the repair. I accept that evidence.

[71] The Minister directed my attention to section 6 of the Act, and in particular to four objectives of the legislation. While all four of the nine objectives are valid, they do not add in any substantive way to the analysis of the four elements of the offence that needed to be proven by the Minister to satisfy her case.

[72] No evidence was presented at the hearing to suggest that any one individual was in danger and in need of protection as a result of the vessel's move to the marina, and no evidence was offered to suggest that Transport Canada Marine Safety does not have an effective inspection and enforcement program.

[73] Equally, no evidence was presented at the hearing to indicate that the move to the marina was a danger to the marine environment. At times during the course of the hearing, the subject of a pollution incident at the marina was touched upon. When that occurred, the Minister reminded the Tribunal, correctly so, that the subject of pollution was not relevant when addressing the elements of the offence that needed to be proven by the Minister to satisfy her case.

[74] The evidence presented at the hearing indicated that Mr. MacNeill was not, on April 20, 2012, employed in a position, nor did he hold or occupy a position on board the ASI Tender that required a certificate. Having reached this conclusion, I do not need to go further and consider the fourth element of the offence, that is, if Mr. MacNeill was employed in a position that required a certificate; that he did not hold the certificate as required; or if he did hold the certificate, that he did not comply with the terms and conditions of that certificate.

VIII.  DETERMINATION

[75] It is my determination, having heard the witnesses, listened to the arguments and having reviewed the facts, that the Minister did not prove to me, on the balance of probabilities, that John Daniel MacNeill was employed on board a Canadian vessel in a position that required a certificate, thereby contravening section 87 of the Canada Shipping Act, 2001. I therefore dismiss the monetary penalty of $1,250 imposed by the Minister.

May 8, 2014

Simon P. Barker

Member