Decisions

TATC File No. MQ-0300-33
MoT File No. Q20130606-303-00992

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Clermont Pellerin, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
section 107 and subsection 109(1) of the Canada Shipping Act, 2001, S.C. 2001, c. 26


Review Determination
Mark A.M. Gauthier


Decision: August 7, 2014

Citation: Pellerin v. Canada (Minister of Transport), 2014 TATCE 27 (Review)

Heard in: Rivière-du-Loup, Quebec, February 25, 2014

[Official Translation]

REVIEW DETERMINATION AND REASONS

Held:

Count no. 1

The Minister of Transport has not proven, on a balance of probabilities, that Clermont Pellerin contravened subsection 109(1) of the Canada Shipping Act, 2001. Consequently, the fine of $1,250 imposed by the Minister is hereby cancelled.

Count no. 2

The Minister of Transport has not proven, on a balance of probabilities, that Clermont Pellerin contravened section 107 of the Canada Shipping Act, 2001. Consequently, the fine of $1,250 imposed by the Minister is hereby cancelled.

I. BACKGROUND

[1] On June 11, 2013, the Minister of Transport (Minister) issued a Notice against the applicant, Clermont Pellerin, in the matter of a contravention of section 107 and subsection 109(1) of the Canada Shipping Act, 2001, S.C. 2001, c. 26 (CSA 2001). The Minister imposed a fine of $1,250 for each of the two counts under the Administrative Monetary Penalties and Notices (CSA 2001) Regulations, SOR/2008-97.

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

No. Contravention Penalty
1 On or around August 9, 2011, on Lake Témiscouata in the province of Quebec, or in the vicinity, Mr. Clermont Pellerin (CDN no. 0136790Z), captain of the Canadian vessel with licence number 13D27599, failed to take all necessary measures to ensure the safety of the vessel and the persons on board in contravention of subsection 109(1) of the Canada Shipping Act, 2001. $1,250.00
2 On or around August 9, 2011, on Lake Témiscouata in the province of Quebec, or in the vicinity, Mr. Clermont Pellerin (CDN no. 0136790Z), captain of the Canadian vessel with licence number 13D27599, failed to obtain the Canadian maritime document required under Part 4 of the Canada Shipping Act, 2001 in order to embark on a voyage from a port in Canada, in contravention of section 107 of the aforementioned Act. $1,250.00

[3] On July 11, 2013, the Applicant filed a request for review with the Transportation Appeal Tribunal of Canada (Tribunal).

II. STATUTES AND REGULATIONS

[4] Section 2, subsection 46(1), section 107, subsection 109(1), and paragraph 120(1)(e) of the CSA 2001, read as follows:

 

2. The definitions in this section apply in this Act.

 

Canadian vessel means a vessel that is registered or listed under Part 2 (Registration, Listing and Recording) or that is exempted under the regulations from the registration requirement in subsection 46(1).

“master” means the person in command and charge of a vessel. It does not include a licensed pilot, within the meaning of section 1.1 of the Pilotage Act, while the pilot is performing pilotage duties under that Act.

“Canadian maritime document” means a licence, permit, certificate or other document that is issued by the Minister of Transport under Part 1 (General), 3 (Personnel), 4 (Safety), 9 (Pollution Prevention — Department of Transport) or 11 (Enforcement — Department of Transport) to verify that the person to whom or vessel to which it is issued has met requirements under that Part.

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

“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;

[…]

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

[…]

107. The master of a Canadian vessel shall, before the vessel embarks on a voyage from a port in Canada, ensure that all of the Canadian maritime documents required under this Part have been obtained.

[…]

109. (1) The master of a vessel shall take all reasonable steps to ensure the safety of the vessel and of persons who are on board or are loading or unloading it while using equipment on it.

[…]

120. (1) The Governor in Council may, on the recommendation of the Minister, make regulations respecting the safety of vessels or classes of vessels and of persons on board or loading or unloading a vessel, including regulations

[…]

(e) requiring the obtaining of certificates certifying that any of the requirements referred to in paragraph (d) are met;

[…]

[5] Subsection 2(1), paragraph 9(1)(b) and subsections 10(1) and (2) of the Vessel Certificates Regulations, SOR/2007-31,read as follows:

2. (1) These Regulations apply in respect of Canadian vessels everywhere and foreign vessels in Canadian waters.

[…]

9. (1) Sections 10 and 11 apply in respect of the following Canadian vessels if they are not Safety Convention vessels:

[]

(b) vessels of more than 15 gross tonnage;

[…]

10. (1) No vessel shall engage on a voyage unless it holds a certificate issued under subsection (2).

(2) On application by the authorized representative of a vessel, the Minister shall issue an inspection certificate to the vessel if the requirements under the Act that apply in respect of the vessel when engaged in its intended service are met.

[6] Paragraph 2(b), subsection 200(1), section 201 and subparagraph 202(3)(b)(i) of the Marine Personnel Regulations, SOR/2007-115, read as follows:

2. In these Regulations,

[…]

(b) Part 2 applies in respect of Canadian vessels, other than pleasure craft, everywhere and in respect of foreign vessels in Canadian waters.

[…]

200. (1) Division 2 applies in respect of self-propelled Canadian vessels, other than cable ferries to which only section 205 applies, that are engaged on a voyage.

[…]

201. No Canadian vessel shall navigate anywhere and no foreign vessel shall navigate in Canadian waters unless the requirements of this Part are met.

202. (3) The authorized representative of a Canadian vessel shall apply to the Minister for the following document and the Minister shall issue the document following that application:

(b) in the case of a vessel that is not a Safety Convention vessel and that is required to carry an inspection certificate, a Safe Manning Document, valid for a maximum of 5 years after the day of its issuance, that specifies

(i) the minimum number of members of the complement,

[7] Sections 49 and 50 of the Schedule to the Administrative Monetary Penalties and Notices (CSA 2001) Regulations, read as follows:

SCHEDULE

(Section 2)

PART 1

VIOLATIONS OF THE CANADA SHIPPING ACT, 2001

Item Column 1 Column 2 Column 3
Provision of the Act Range of Penalties ($) Separate Violation for Each Day
     
49. Section 107 1,250 to 25,000  
50. Subsection 109(1) 1,250 to 25,000  
     

III. ELEMENTS TO BE PROVEN

[8] On the basis of the Notice in this case, I have concluded that the Minister must prove the following elements in order to prove his case.

A. Count no. 1

1. Mr. Pellerin was the captain of a vessel with licence number 13D27599, on or around August 9, 2011.
2. The vessel is a “Canadian vessel” within the meaning of the CSA 2001.
3. Mr. Pellerin failed to take the necessary measures to ensure the safety of the vessel and the persons on board, on or around August 9, 2011.

B. Count no. 2

1. Mr. Pellerin was the captain of a vessel with licence number 13D27599, on or around August 9, 2011.
2. The vessel is a “Canadian vessel” within the meaning of the CSA 2001.
3. Mr. Pellerin failed to obtain the Canadian maritime document required under Part 4 of the Act before the vessel embarked on a voyage from a port in Canada, on or around August 9, 2011.

IV. EVIDENCE

[9] At the opening of the hearing, Mr. Pellerin requests a review of the validity of the Notice in this case, which is dated June 11, 2013 and is referred to in paragraphs [1] and [2] of the Background (Notice no. 2). For all practical purposes, Mr. Pellerin requests that the Tribunal cancel Notice no. 2 on the grounds listed in the following paragraphs.

[10] Mr. Pellerin enters into evidence a file entitled Clermont Pellerin, datedJuly 11, 2012 (Exhibit R-1). He states that a Notice, which is dated May 17, 2012 and appears in tab 1 of Exhibit R-1 (Notice no. 1), is a certified copy of the Notice in this case. In fact, Notice no. 1 alleges three violations for a total penalty of $3,750, whereas Notice no. 2 alleges two violations, for a total penalty of $2,500.

[11] First of all, I reject the argument that the two Notices are certified copies because they concern alleged violations of different provisions of the CSA 2001.

[12] More precisely, Notice no. 1 concerns paragraphs 106(2)(a) and 106(1)(b), as well as subsection 46(2) of the Act, whereas Notice no. 2 concerns section 107 and subsection 109(1) of the Act.

[13] Mr. Pellerin notes that in a letter sent to him, dated June 11, 2013 and signed by Line Laroche, manager at Transport Canada, Notice no. 1 was withdrawn and consequently, the Tribunal ordered the review hearing to be cancelled. This was, in his opinion, a judgment of the Tribunal (see the documentation to this effect attached to the endorsement of Exhibit R-1, immediately following tab 13).

[14] Mr. Pellerin argues that, in his opinion, the notice of cancellation issued by the Tribunal serves to put an end to the procedure relating to Notice no. 1. In addition, he claims that, on the basis of a section of the CSA 2001 or the Transportation Appeal Tribunal of Canada Act (TATC Act), which he did not further clarify, the Minister cannot re-open a case, i.e. by submitting Notice no. 2, unless new evidence is presented.

[15] In my opinion, the Minister has withdrawn Notice no. 1 and the only action taken by the Tribunal was to issue a notice of cancellation of the hearing relating to Notice no. 1, scheduled for June 18, 2013 (see the documentation attached to Exhibit R-1).

[16] I conclude that the notice of cancellation of the hearing issued by the Tribunal is a matter of procedure and does not constitute a judgment of the Tribunal which would affect this case.

[17] I am also of the opinion that only section 14 of the TATC Act raises the issue of pieces of evidence that were not available during a case and this provision applies only to appeals and not to applications for review, as is the case here. I have found no provision in the CSA 2001 that raises this issue and that would prevent the Minister from withdrawing a Notice or, having withdrawn one, issuing a new one.

[18] Consequently, I reject Mr. Pellerin's claim that a provision of the CSA 2001 or, for that matter, the TATC Act, prevents the Minister from issuing Notice no. 2.

[19] As such, I reject Mr. Pellerin's request to withdraw Notice no. 2 and to put an end to current proceedings.

A. Minister of Transport

(1) Robert Fecteau

[20] Mr. Fecteau has been a marine safety manager at Transport Canada since June 2000 and was previously an inspector at the department. His many duties include supervising the work of inspectors.

[21] Mr. Fecteau mentions that Transport Canada's mandate includes inspecting vessels in order to ensure that the statutes and regulations in force are respected.

[22] Mr. Fecteau states that he first became involved in this case in June 2011, when an inspector informed him that Mr. Pellerin had launched a project dating from 2010 to use a vessel for the transport of passengers on Lake Témiscouata.

[23] At this stage, I note that all documents entered into evidence by the Minister are brought together in a document which is dated February 25, 2014 and entitled Bench Book – Evidence Submitted by the Minister of Transport (Bench Book).

[24] Mr. Fecteau explains that the vessel in question has a pleasure craft licence and enters into evidence a document entitled Pleasure Craft Licence (Exhibit M-1). He adds that this document contains the following information: licence number 13 D 27599, issued in the name of 9141-9200 Qc. Inc. Clermont Pellerin, and dated June 14, 2005.

[25] Mr. Fecteau confirms that the necessary information for the certification of a vessel for the transport of passengers was sent to Mr. Pellerin in an email, which is dated December 10, 2010 and which he enters into evidence (Exhibit M-2). In particular, he explains that the document refers to regulatory requirements in this field, and includes a list of consultants who could help Mr. Pellerin with the calculations that are related to the stability of the vessel.  

[26] Mr. Fecteau shows an inspection certificate, issued on June 3, 2011, which he enters into evidence (Exhibit M-3). He explains that this document contains the following information: the vessel is called “LE ROI DU LAC” (Roi du Lac), its owner is Clermont Pellerin, and its gross tonnage is 22.29.

[27] Mr. Fecteau states that a vessel weighing more than 15 tons must have an inspection certificate, issued by Transport Canada, in order to carry any passengers.

[28] Mr. Fecteau states that he communicated this information to Mr. Pellerin by telephone on June 10, 2011. He also explained to him that the Roi du Lac must be registered and that Mr. Pellerin must submit the vessel's plans and stability calculations before an inspection certificate could be issued. Mr. Fecteau also warned Mr. Pellerin that he could not use the vessel until the certificate had been issued.

[29] Mr. Fecteau states that on June 16, 2011, he sent an inspector, Denis Bélanger, to Lake Témiscouata in order to give Mr. Pellerin a practical test for obtaining a master mariner's certificate, as well as to attend a stability test of the Roi du Lac to be carried out by David Fortin, a maritime consultant.

[30] Mr. Fecteau states that he informed Mr. Pellerin by telephone on June 23, 2011 that the plans of the Roi du Lac presented to Transport Canada were not satisfactory and that he took the opportunity to warn Mr. Pellerin again that he could not use the Roi du Lac for thetransport of passengers unless Transport Canada had first issued an inspection certificate.

[31] Despite the warnings given to Mr. Pellerin, Mr. Fecteau states that he suspects Mr. Pellerin of using the Roi du Lac for the transport of passengers without obtaining the relevant certificate from Transport Canada.

[32] In order to confirm or allay his suspicions, Mr. Fecteau explains that he commissioned two inspectors, Christian Van Sterthem and Jean-Sébastien Boudreau, to try to book a cruise on the Roi du Lac in order to determine the use of the vessel by Mr. Pellerin, and gave them instructions relating to the inspection of the vessel. Finally, he ordered the inspectors not to leave the dock on board the Roi du Lac, as he suspected that the vessel did not carry the necessary safety equipment and may not be stable.

[33] During cross-examination, Mr. Fecteau admits that a certificate pursuant to Part 4 of the CSA 2001 is not necessary if the vessel is a pleasure craft.

(2) Denis Bélanger

[34] Mr. Bélanger states that he has been a marine inspector at Transport Canada for 27 years and that he has also been appointed by the Minister as an examiner of captains and lieutenants. As part of his role, he inspects vessels to ensure that they conform to applicable statutes and regulations. It should be noted that during his testimony, Mr. Fecteau had confirmed Mr. Bélanger's status as an inspector.

[35] Mr. Bélanger explains that a master mariner's certificate was issued to Mr. Pellerin on June 17, 2011, after he passed a written and practical exam. Mr. Bélanger enters into evidence a document dated June 17, 2011 (Exhibit M-4). He adds that the Minister's certificate is only valid as captain, with restrictions, of the Roi du Lac, when the vessel is on Lake Témiscouata. At the same time, Mr. Bélanger states that he advised Mr. Pellerin that even with a master mariner's certificate for the Roi du Lac, he could not use the vessel as a passenger vessel unless it had an inspection certificate.

[36] Mr. Bélanger states that he attended a stability test for the Roi du Lac conducted by David Fortin, a maritime consultant, on June 17, 2011. He states that after the test, Mr. Fortin explained that in accordance with applicable standards, the vessel could only transport six or seven passengers and that Mr. Pellerin was informed of his conclusions.

[37] Mr. Bélanger testifies about a report on the stability test entitled Inclination and Stability Test Report,dated June 17, 2011, which he enters into evidence (Exhibit M-5). He states that this document contains the following information: the standard used for testing, a description of the vessel and freeboard measurements.

[38] During cross-examination, Mr. Pellerin states that he was unaware that Mr. Bélanger would testify in the case. The Minister's representative submits for my consideration, and that of Mr. Pellerin, the case disclosure demonstrating that Mr. Bélanger's name appears on the list of witnesses. However, Mr. Bélanger's name does not appear in disclosure regarding Notice no. 1, withdrawn by the Minister.

[39] Consequently, I have concluded that Mr. Bélanger's testimony is admissible in this case.

(2) Christian Van Sterthem

[40] Mr. Van Sterthem states that he has been a marine inspector for Transport Canada for 15 years; his role includes, amongst other things, inspecting vessels.

[41] Mr. Van Sterthem testifies about a document relating to an advertisement for the Roi du Lac that he found on a website, which he enters into evidence (Exhibit M-6). The first three pages appear in tab 6 of the Bench Book. He testifies that this document contains the following information: a flat rate is available for rides and cruises on the Roi du Lac, departing from the Cabano marina, lasting two hours by reservation using the telephone number or e-mail address provided.

[42] Mr. Van Sterthem states that he went to the dock at Notre-Dame-du-Lac, accompanied by inspector Jean-Sébastien Boudreau, on August 9, 2011 at around 2.30 p.m., and met Mr. Pellerin shortly after he had secured the Roi du Lac to the dock.

[43] Mr. Van Sterthem testifies that Mr. Pellerin confirmed to him that the price for the cruise was $10 per person, per hour.

[44] Shortly afterwards, Mr. Van Sterthem told Mr. Pellerin that he was an inspector from Transport Canada, as was his colleague Mr. Boudreau, and they subsequently inspected the Roi du Lac.

[45] Mr. Van Sterthem testifies about a document relating to the inspection of the vessel, dated August 9, 2011 and entitled Inspection Report,belonging to Transport Canada, which he enters into evidence (Exhibit M-8). This document contains the following information: the inspection relates to the Roi du Lac; its owner is Clermont Pellerin; the vessel's machinery and equipment were inspected; a list of examples of non-compliance with applicable requirements for the vessel in relation to the transport of passengers appears on pages 2 to 4 of the document; the report should be considered as preliminary; and the vessel may later be subjected to further inspection.

[46] Mr. Van Sterthem enters into evidence a document dated August 9, 2011 and entitled Notice of Deficiency (Exhibit M-9). He explains that this document contains the following information: the notice relates to the Roi du Lac and lists five non-conformities, the enforcement of which shall be carried out by means of a detention order, administrative monetary penalties or both.

[47] On the basis of the non-conformities referred to in the previous paragraph, Mr. Van Sterthem issued an Order and Notice of Detention against the Roi du Lac, dated August 9, 2011, which he enters into evidence (Exhibit M-10).

[48] During the inspection, some photos of the Roi du Lac were taken. Mr. Van Sterthem enters into evidence a three-page document of photos (Exhibit M-7). Mr. Van Sterthem states that this document contains the following information: a poster indicating the name of the vessel, Roi du Lac; a telephone number to call for reservations; and the licence number, 13D27599.

[49] During cross-examination, Mr. Van Sterthem indicates that he did not pay money to Mr. Pellerin and that the vessel did not leave the dock on a cruise on August 9, 2011. In addition, Mr. Van Sterthem states that he never went to Cabano and therefore never saw the Roi du Lac in that location.

[50] Mr. Van Sterthem adds that the cruise did not take place, and the money was not paid, because he received an order from his manager, Mr. Fecteau, not to go on the cruise. In addition, he admits that he did not see passengers on board the Roi du Lac.

(3) Jean-Sébastien Boudreau

[51] Mr. Boudreau states that he has been chief marine inspector at Transport Canada since August 1, 2011 and that he has worked in the marine industry since 1993. He explains that he is mainly responsible for ensuring compliance with the CSA 2001 and the regulations established under the Act. It should be noted that during his testimony, Mr. Fecteau had confirmed Mr. Boudreau's status as an inspector.

[52] Mr. Boudreau testifies about a document relating to an advertisement for the Roi du Lac that he found on Facebook, which he enters into evidence (Exhibit M-11). The last three pages appear in tab 6 of the Bench Book. This document contains the following information: that Captain Pellerin invites the public on board the Roi du Lac for rides and cruises, for a maximum of 30 people; and an advertisement dated April 12, 2011, specifying that the trips would begin on June 15, 2011.

[53] Mr. Boudreau testifies that he telephoned Mr. Pellerin on August 5, 2011, to book a trip for three people on the Roi du Lac, but Mr. Pellerin informed him that, although he offered trips, at least five people were required to make the trips profitable. Mr. Boudreau then booked a trip for five people. He adds that Mr. Pellerin accepted this request and that they also agreed on the price of $10 per person, per hour, and that the crossing would take place on August 9, 2011.

[54] Mr. Pellerin asked whether Mr. Boudreau would accept other people joining the cruise, as people sometimes wanted to board the vessel at the last minute. Mr. Boudreau accepted willingly.

[55] Mr. Boudreau confirms that during the telephone call, Mr. Pellerin told him that the Roi du Lac could accommodate up to 30 people.

[56] Mr. Boudreau states that he arrived at the dock at Notre-Dame-du-Lac on August 9, 2011, accompanied by Mr. Van Sterthem. He adds that he again confirmed the cost of the trip with Mr. Pellerin; i.e., $10 per person, per hour. Following this discussion, he states that he and his colleague, Mr. Van Sterthem, identified themselves as inspectors and said that they wished to inspect the vessel.

[57] During cross-examination, Mr. Boudreau admits that he has never seen passengers on board the Roi du Lac; that the vessel did not leave the dock on a cruise on August 9, 2011; and that he did not pay money to Mr. Pellerin.

[58] Mr. Boudreau adds that the cruise did not take place, and the money was not paid, because he received an order from his manager, Mr. Fecteau, not to go on the cruise.

[59] At the end of the cross-examination, the Minister's representative, with the consent of Mr. Pellerin, enters into evidence a video recording (Exhibit M-12). I have watched the video and taken note of its contents.

B. Applicant

[60] Mr. Pellerin does not present any witnesses.

V. ARGUMENTS

(1) Minister of Transport

[61] The Minister's representative bases his arguments and submissions on two documents which he has shown to me and which are entitled Respondent's Book of Authorities and Submissions by the Minister of Transport.

[62] The Minister's representative argues that the evidence shows that the Roi du Lac is in fact a “Canadian vessel” within the meaning of the CSA 2001, has a gross tonnage greater than 15 and is therefore subject to the Act and to the regulations applicable to this type of vessel.

[63] The Minister's representative states that Clermont Pellerin is the captain of the Roi du Lac and that he uses it to transport passengers.

[64] The Minister's representative states that the advertisement (Exhibits M-6, M-11 and M-12), amongst other pieces of evidence, demonstrates that Mr. Pellerin has used the vessel to transport passengers.

[65] With reference to section 107 of the CSA 2001, the Minister's representative claims that the evidence shows that Captain Pellerin failed to obtain Canadian maritime documents before using the vessel for commercial purposes, i.e., to transport passengers.

[66] With reference to subsection 109(1) of the CSA 2001, the Minister's representative argues that the evidence shows that Captain Pellerin failed to take all necessary measures to ensure the safety of passengers on board the vessel. In particular, the Roi du Lac did not meet the relevant regulatory requirements and did not have the necessary equipment to ensure the safety of passengers some minutes before its departure on August 9, 2011.

[67] In support of his arguments, the Minister's representative refers to various aspects of the testimonies and a number of legislative and regulatory provisions.

[68] In particular, he cites subsections 11(2), 211(1) and 222(1) of the CSA 2001, pertaining to the powers to inspect and detain a vessel, as well as various provisions of several regulations, especially the Vessel Certificates Regulations; Life-Saving Equipment Regulations; Fire Detection and Extinguishing Equipment Regulations; and Marine Personnel Regulations.

[69] The Minister's representative also argues that there are, in his opinion, aggravating factors in this case proving recklessness, in particular that Captain Pellerin advertised details of planned trips and invited the public to book trips on the Roi du Lac some days after Transport Canada had informed him of the consequences of violating the Act and applicable regulations.

[70] Taking into account the aggravating factors that he believes exist in this case with reference to subsection 109(1) of the CSA 2001, the Minister's representative requests that the Tribunal increase by at least 30 per cent the penalty of $1,250 already imposed by the Minister.

(2) Applicant

[71] Mr. Pellerin begins by repeating the arguments he made, and the conclusions he reached, as part of his request for review, in particular that the Tribunal should cancel Notice no. 2 in this case.

[72] Turning to the merits of the case, Mr. Pellerin first of all takes the position that the various advertisements entered into evidence by the Minister do not prove that the Roi du Lac has made trips in which passengers were transported.

[73] Mr. Pellerin characterises the advertisements entered into evidence by Mr. Van Sterthem and Mr. Boudreau (the first three pages of Exhibit M-6 and the last three pages of Exhibit M-11) as market research.

[74] As regards the alleged contravention of subsection 109(1), Mr. Pellerin posits that since the Roi du Lac did not transport passengers, this provision was not contravened. He adds, however, that a friend had sailed on the vessel.

[75] As regards the alleged contravention of section 107, Mr. Pellerin states that the Roi du Lac has always been used as a pleasure craft and, consequently, this section does not apply to the Roi du Lac.

(3) Minister's reply

[76] The Minister's representative states that neither section 107 nor subsection 109(1) mention voyages or passengers.

[77] He submits that section 107 and subsection 109(1) belong to a category of violations that he describes as “passive”; i.e., in his opinion, elements of the wording apply before the start of the voyage.

[78] The Minister's representative states that the Roi du Lac did not need to leave the dock in order to prove a contravention of section 107 and subsection 109(1).

VI. ANALYSIS

[79] I shall analyse the elements to be proven in relation to the two counts, beginning with the second count.

Count no. 2

[80] For the sake of clarity, section 107 of the CSA 2001 states:

The master of a Canadian vessel shall, before the vessel embarks on a voyage from a port in Canada, ensure that all of the Canadian maritime documents required under this Part have been obtained.

[81] The elements to be proven in relation to section 107 of the Act appear in paragraph [8] above.

[82] The first element is as follows: Mr. Pellerin was the captain of a vessel with licence number 13D27599, on or around August 9, 2011.

[83] With reference to the first element, I conclude that three documents entered into evidence by the Minister (Exhibit M-1, M-4 and M-7) prove that Clermont Pellerin is the captain of the Roi du Lac and that the vessel has the licence number 13D27599.

[84] The second element is as follows: the vessel is a “Canadian vessel” within the meaning of the Act.

[85] The expression “Canadian vessel” is defined in section 2 of the CSA 2001, in relation to the registration requirements provided for under Part 2 of the Act.

[86] Amongst these requirements, subsection 46(1) of the Act states that vessels, other than those defined as “pleasure craft”, must be registered.

[87] It is also provided for, under section 2 of the CSA 2001, that a vessel with passengers is excluded from the definition of a “pleasure craft”.

[88] I admit that the definition of “passenger” in section 2 of the Act is not a shining example of clarity. However, from my reading of the wording, I conclude that a person who pays for transport on board a vessel is deemed to be a passenger.

[89] Therefore, in my opinion, in simple terms, the Roi du Lac shall be deemed to be a “Canadian vessel” if it is used to transport paying passengers and therefore, being excluded from the definition of a “pleasure craft”, must be registered, which constitutes a “Canadian vessel”.

[90] Mr. Pellerin states that the Roi du Lac has never been used for the transport of passengers and that, with the exception of himself, the only other person to have sailed on board the vessel was a friend. Although he did not mention it specifically, I presume that the friend in question did not pay for her transport; therefore, I conclude that she would not be deemed a “passenger” within the meaning of the Act.

[91] However, it should be reiterated that Mr. Van Sterthem testified that when he went to the dock at Notre-Dame-du-Lac on August 9, 2011, Mr. Pellerin confirmed to him that there was a price for the cruise; i.e., $10 per person, per hour.

[92] Moreover, Mr. Van Sterthem and Mr. Boudreau stated under cross-examination that they did not pay money to Mr. Pellerin, adding that they had received an order from their manager, Mr. Fecteau, not to go on the cruise.

[93] According to Mr. Boudreau's testimony, Mr. Pellerin agreed to book a trip for him and Mr. Van Sterthem on board the Roi du Lac on August 9, 2011, at a fixed price of $10 per person, per hour.

[94] In this case, I am of the opinion that Mr. Van Sterthem and Mr. Boudreau may be deemed “passengers” within the meaning of section 2 of the CSA 2001, rather than non-paying guests of Mr. Pellerin, and consequently, the Roi du Lac is not a “pleasure craft” within the meaning of the Act.

[95] With regard to the second element, I conclude that the Roi du Lac in this case is a “Canadian vessel” within the meaning of the Act.

[96] The third element is as follows: Mr. Pellerin failed to obtain the Canadian maritime document required under Part 4 of the CSA 2001 before the vessel embarked on a voyage from a port in Canada, on or around August 9, 2011.

[97] Firstly, it must be determined whether there is a “Canadian maritime document” in this case and, if so, whether it is required under Part 4 of the Act.

[98] The expression “Canadian maritime document” is defined as, amongst other things, a document or certificate issued by the Minister under Part 4 of the Act. Under the terms of section 107 of the CSA 2001, it is sufficient to identify one such document or certificate which the Roi du Lac, as a “Canadian vessel”, must have. I hereby specify two:

1) an inspection certificate under the Vessel Certificates Regulations; and

2) a document specifying safe manning, in particular, the minimum number of personnel (document/minimum number) under the Marine Personnel Regulations.

[99] I emphasize that the regulations cited above are established under the regulatory powers of Part 4 of the CSA 2001, i.e. paragraph 120(1)(e) of the Act.

[100] I conclude that the inspection certificate and document/minimum number are “Canadian maritime documents” and are required under Part 4 of the Act.

[101] Secondly, it must be determined whether Mr. Pellerin failed to obtain the certificate and document/minimum number required under the terms of the Act before the vessel embarked on a voyage from a port in Canada.

[102] With reference to obtaining the Canadian maritime documents required under the Act, I conclude that on the basis of the exhibits entered into evidence by the Minister (M-8 and M-9), neither an inspection certificate, nor a document/minimum number with regard to the Roi du Lac, were obtained.

[103] Thirdly, it must be established whether the dock at Notre-Dame-du-Lac is a port in Canada.

[104] The word “port” is defined in the Dictionnaire de droit québécois et canadien [Dictionary of Quebec and Canadian Law] (Hubert Reid, 3rd edition) as a natural or artificial shelter designed to accommodate vessels and to enable persons or goods to be loaded or unloaded. Therefore, I conclude that the dock at Notre-Dame-du-Lac, where the Roi du Lac was situated on August 9, 2011 to receive its passengers, is a port within the meaning of section 107 of the CSA 2001.

[105] Finally, the expression “before the vessel embarks on a voyage” must be interpreted in order to determine whether or not section 107 of the Act was contravened, bearing in mind the evidence presented in this case.

[106] There is no doubt that Mr. Pellerin sought to use the Roi du Lac for the transport of passengers and that he was fully aware of the relevant legislative and regulatory requirements.

[107] In this respect, Mr. Fecteau testified that he informed Mr. Pellerin of these requirements in December 2010. In addition, he warned him by telephone on June 10, 17, and 23, 2011, not to operate the vessel before the required inspection certificate had been issued.

[108] I am of the opinion that the cruise on Lake Témiscouata would have taken place on August 9, 2011 as agreed, with Mr. Boudreau and Mr. Van Sterthem on board the vessel as passengers, if the latter had not identified themselves as inspectors. Therefore, in my opinion, the Roi du Lac was on the verge of undertaking a voyage from the dock at Notre-Dame-du-Lac on August 9, 2011.

[109] In short, the evidence shows that Mr. Pellerin was fully aware of the statutes and regulations that applied to the Roi du Lac; that on August 9, 2011, the vessel was on the verge of undertaking a voyage on Lake Témiscouata, carrying Mr. Boudreau and Mr. Van Sterthem on board as passengers; but that the vessel did not leave the dock.

[110] Is the evidence sufficient to establish that Mr. Pellerin failed to ensure that all relevant Canadian maritime documents had been obtained “before the vessel embarked on a voyage”, as indicated in section 107 of the CSA 2001?

[111] In paragraph [8] of Excursions de pêche des Îsles Inc. v. Minister of Transport, 2011 TATCE 23 (MQ-0085-37) (Review), counsel judged that it was necessary for the vessel in question to have “embarked on a sea voyage” in order to establish that section 107 of the Act had been contravened.

[112] Similarly, in paragraph [10] of Campbell v. Minister of Transport, 2010 TATCE 7 (MP‑0024‑33) (Review), counsel judged that it was necessary for the vessel in question to have “proceeded on a voyage” in order to establish that section 107 of the Act had been contravened.

[113] In my opinion, counsel judged that as a matter of interpretation of the wording, a vessel that is the subject of an offence must actually have embarked on a voyage in order to establish a contravention of the provision. The mere fact that in these two cases the vessels had actually undertaken voyages, provided proof that section 107 had been contravened.

[114] I support the interpretation of section 107 of the Act made by counsel. I am also of the opinion that it is not necessary to prove that a vessel had completed a voyage, but only that it had started it. Consequently, a vessel which does not leave the dock cannot be deemed to have embarked on a voyage.

[115] I conclude, on a balance of probabilities, that Mr. Pellerin did not contravene section 107 of the CSA 2001.

[116] I might add that in this case, the safety of marine transport has been furthered with the detention of the Roi du Lac under the Order and Notice of Detention (Exhibit M-10), in accordance with the provisions of the CSA 2001.

Count no. 1

[117] For the sake of clarity, subsection 109(1) of the CSA 2001 reads as follows:

The master of a vessel shall take all reasonable steps to ensure the safety of the vessel and of persons who are on board or are loading or unloading it while using equipment on it.

[118] The elements to be proven in relation to subsection 109(1) of the Act appear in  paragraph [8] above.

[119] Taking into account that the first two elements in relation to section 107 and subsection 109(1) are identical, I arrive at the same conclusion for both sets of wording; i.e., that Clermont Pellerin is the captain of the “Canadian vessel” Roi du Lac and that the latter has the licence number 13D27599.

[120] The third element is as follows: Mr. Pellerin failed to take all necessary measures to ensure the safety of the vessel and the persons on board, on or around August 9, 2011.

[121] Mr. Van Sterthem and Mr. Boudreau testified concerning several advertisements on the Internet and on Facebook with regards to the Roi du Lac (Exhibits M-6, M-11 and M-12) which give a lot of information, in particular that Mr. Pellerin announced a fixed rate for cruises beginning June 15, 2011 on Lake Témiscouata by reservation.

[122] For his part, the Minister's representative states that, amongst other pieces of evidence, the various advertisements prove that Mr. Pellerin used the Roi du Lac to transport passengers.

[123] I attach little weight to these pieces of evidence; rather, I would expect specific examples of the transport of passengers on board the Roi du Lac to have been entered into evidence. On the contrary, Mr. Sterthem admits that he never went to Cabano, the place where the Roi du Lac should have been, according to the advertisement, and that he has never seen passengers on board the vessel. For his part, Mr. Boudreau admits under cross-examination that he has never seen passengers on board the Roi du Lac.

[124] The Minister's representative claims that the evidence proves that Mr. Pellerin did not take all necessary measures to ensure the safety of his passengers because, some minutes before the planned departure of the Roi du Lac on August 9, 2011, the vessel did not meet regulatory requirements and criteria, and did not have the required equipment to ensure the safety of passengers.

[125] This proposition should be interpreted in the context of the wording which, in my opinion, is clearly aimed at the safety of persons who are actually on boarda vessel, and the Minister bears the burden of proof in establishing on a balance of probabilities this element of subsection 109(1) of the Act which, in my opinion, is key.

[126] I support the Minister's representative's claim that it must be demonstrated that Mr. Pellerin did not take the necessary measures to ensure the safety of passengers on board the Roi du Lac on August 9, 2011 in order to establish a contravention of subsection 109(1) of the Act.

[127] Bearing in mind that there were no passengers on board the Roi du Lac on August 9, 2011, I conclude, on a balance of probabilities, that Mr. Pellerin did not contravene subsection 109(1) of the CSA 2001.

VII. DETERMINATION

Count no. 1

The Minister of Transport has not proven, on a balance of probabilities, that Clermont Pellerin contravened subsection 109(1) of the CSA 2001. Consequently, the fine of $1,250 imposed by the Minister is hereby cancelled.

Count no. 2

The Minister of Transport has not proven, on a balance of probabilities, that Clermont Pellerin contravened section 107 of the CSA 2001. Consequently, the fine of $1,250 imposed by the Minister is hereby cancelled.

August 7, 2014

Mark A.M. Gauthier

Member