T-232-86
Great Lakes Pilotage Authority Ltd. (Plaintiff)
v.
Misener Shipping Limited (Defendant)
INDEXED AS: GREAT LAKES PILOTAGE AUTHORITY LTD. V.
MISENER SHIPPING LTD.
Trial Division, Denault J.—Montréal, November
25 and 26, 1986; Ottawa, May 8, 1987.
Maritime law — Pilotage — Regulations s. 4(1)(c)(ii)
whereby, on re-entering Canadian waters, every ship having
left Great Lakes or Canadian inland waters subject to compul
sory pilotage ultra vires regulatory authority as having no
connection with navigational safety — Great Lakes Pilotage
Regulations, C.R.C., c. 1266, s. 4 (as am. by SOR/83-256) —
Pilotage Act, S.C. 1970-71-72, c. 52, ss. 12, 14, 34.
Two of the defendant's ships, lakers able to navigate on the
open sea, re-entered Canadian waters in May 1985 after over
seas voyages during the period in which the St. Lawrence
Seaway was closed. When the plaintiff asked the defendant,
pursuant to the Pilotage Act, to take licensed pilots on board,
on the ships' arrival in waters under its jurisdiction, the owner
refused. This is a claim for pilotage charges allegedly due by
the defendant for not using the pilots whose services it should
have retained pursuant to the Act. The defendant refuses to
pay, arguing that subparagraph 4(1)(c)(ii) of the Regulations,
which makes every ship leaving the Great Lakes or inland
waters of Canada, except for occasional hometrade voyages,
subject to compulsory pilotage on re-entering Canadian waters,
is ultra vires the regulatory authority conferred by sections 12
and 14 of the Act. It is admitted that the ships and their
masters otherwise met the requirements of the Regulations for
being exempt from compulsory pilotage.
Held, the action should be dismissed. Subparagraph
4(1)(c)(ii) is declared ultra vires the regulatory capacity con
ferred on the Authority by sections 12 and 14 of the Act in that
it has no connection with navigational safety.
The ultimate object of the Act is to ensure navigational
safety within the Great Lakes region and the St. Lawrence
Seaway. The Regulations adopted thereunder, inter alia the
provisions concerning compulsory pilotage and pilotage
charges, are all subordinate to the main object.
It has already been established by the Supreme Court of
Canada in Alaska Trainship that requirements having nothing
to do with navigational safety, such as the country of registry,
are ultra vires the regulatory authority. Based on the Federal
Court of Appeal decision in Alaska Trainship, safety consists
of three elements: (1) factors connected with the physical
characteristics of the ship; (2) the competence of the master or
officer responsible for piloting the ship; (3) their respective
knowledge of local waters. The disputed requirement herein
relates to none of the above. The mere fact that a ship leaves
Canadian waters cannot have the effect of transforming it into
a danger to navigational safety when it returns to Canadian
waters. And subparagraph 4(1)(c)(ii) creates a distinction
based on the displacement of certain ships, not on the physical
characteristics of so-called "salty lakers" as opposed to
"lakers".
CASES JUDICIALLY CONSIDERED
APPLIED:
Alaska Trainship Corporation et al. v. Pacific Pilotage
Authority, [1981] 1 S.C.R. 261, confirming [1980] 2
F.C. 54 (C.A.) and [1978] 1 F.C. 411 (T.D.); The King
v. National Fish Company Ltd., [1931] Ex.C.R. 75;
Texaco Canada Ltd. v. Corporation of City of Vanier,
[1981] 1 S.C.R. 254; Prince George (City of) v. Payne,
[1978] 1 S.C.R. 458.
COUNSEL:
Laurent Fortier for plaintiff.
Jacques A. Laurin and Nancy G. Cleman for
defendant.
SOLICITORS:
Stikeman, Elliott, Montréal, for plaintiff.
McMaster, Meighen, Montréal, for defen
dant.
The following is the English version of the
reasons for judgment rendered by
DENAULT J.: The plaintiff is claiming pilotage
charges from the defendant as the latter's ships
navigated in waters under its jurisdiction without
using the pilots whose services it should have
retained pursuant to the Pilotage Act (S.C. 1970-
71-72, c. 52). The defendant refuses to pay, argu
ing that the regulatory provision (subpara-
graph 4(1)(c)(ii) of the Great Lakes Pilotage
Regulations, C.R.C., c. 1266, as amended (SOR/
83-256)), which makes every ship leaving the
Great Lakes or inland waters of Canada, except
for occasional home-trade voyages, subject to com
pulsory pilotage, is ultra vires the regulatory au
thority conferred by sections 12 and 14 of that
Act.
LEGISLATION:
Before analysing the facts and points of law, it
will be useful to briefly review the legislative back
ground to this matter. The Great Lakes Pilotage
Authority Ltd. is a corporation the objects of
which are to establish, operate, maintain and
administer an efficient pilotage service in the inter
ests of safety within the Great Lakes region and
the St. Lawrence Seaway. It holds its powers
under the Pilotage Act, which authorizes it inter
alia not only to make the general regulations
necessary to attain these objects, in particular by
prescribing the ships or classes of ships that are
subject to compulsory pilotage, but also to impose
pilotage charges on any ship subject to compulsory
pilotage which proceeds through a compulsory
pilotage area without being under the conduct of a
licensed pilot. The ship is then liable to the Au
thority for all pilotage charges as if it had been
under the conduct of a licensed pilot (section 34).
In 1983 the plaintiff amended section 4 of its
Great Lakes Pilotage Regulations, which now
reads as follows:
4. (1) Subject to subsection (2), every ship of more than 300
gross registered tons is subject to compulsory pilotage unless it
is
(a) a ferry operating on a regular schedule;
(b) a tug that is
(i) not engaged in towing or pushing another ship or
object, or
(ii) engaged in towing or pushing a ship that is
(A) of less than 79.25 m in length, or
(B) within a harbour;
(c) a ship that
(i) is inspected and certified as to safety on behalf of the
Board of Steamship Inspection established pursuant to the
Canada Shipping Act,
(ii) navigates only on the Great Lakes or inland waters of
Canada except for occasional home-trade voyages, and
(iii) is under the conduct of a master or deck watch officer
who
(A) is a regular member of the complement of the ship,
(B) holds a valid certificate of competency of the proper
grade and class issued by the Minister of Transport or
recognized by him for the purpose of subsection 130(1)
of the Canada Shipping Act, and
(C) has been certified within the preceding twelve
months by the owner of the ship as having completed, in
the three year period preceding the date of the certifi
cate, in the capacity of master or deck watch officer, not
less than ten one-way passages of the compulsory pilot-
age area in which the ship is navigating; or
(d) a ship that
(i) navigates only on the Great Lakes or inland waters of
Canada except for occasional home-trade voyages, and
(ii) is under the conduct of a master or deck watch officer
who holds a certificate of competency or similar document
issued pursuant to the laws of the United States that
authorizes that person to have the conduct of the ship
within the compulsory pilotage area in which the ship is
navigating.
It may be worth mentioning that the amend
ment to this regulation was made necessary by a
judgment of the Supreme Court of Canada in
Alaska Trainship Corporation et al. v. Pacific
Pilotage Authority, ([1981] 1 S.C.R. 261), in
which the highest court ruled ultra vires the ear
lier regulation making the requirement of compul
sory pilotage depend on the ship's country of regis
try. The Supreme Court thus approved in essence
the judgments of the Federal Court of Appeal
([1980] 2 F.C. 54) and of the Federal Court Trial
Division [[1978] 1 F.C. 411], which had both in
varying degrees disapproved this regulation. The
courts then held that the Authority had exceeded
its functions: it had a duty to regulate in the
interests of safety, but the country of registry was
a superfluous requirement having nothing to do
with safety, which was already covered by the
other conditions of the Regulations. Following
these judgments the plaintiff, which had adopted
Regulations similar to those of the Pacific Pilotage
Authority, amended the old Regulations to remove
any reference to the ship's country of registry. The
compulsory pilotage requirement now applies to
every ship of more than 300 tons except ships
holding a certificate from the Board of Steamship
Inspection, on which the master or a deck watch
officer is qualified and which "navigates only on
the Great Lakes or inland waters of Canada except
for occasional home-trade voyages".
FACTS:
The facts in the case at bar are quite straight
forward, and indeed were for the most part the
subject of admissions by the parties.
The Selkirk Settler and the Canada Marquis,
the two ships involved in this case, are owned by
the defendant. Both fall into the category of "lak-
ers", ships which as their name suggests navigate
on the waters of the St. Lawrence Seaway and the
Great Lakes. However, due to their particular
construction they are able to navigate on the open
sea. Both ships are in perfect condition, having
been launched quite recently, in 1983.
On May 3, .1985 the Canada Marquis re
entered Canadian waters after an overseas voyage
during the period in which the St. Lawrence
Seaway was closed. Captain M. Armstrong, an
employee of the defendant, took over the ship
when it arrived at Sept-Îles. Captain Armstrong,
who is an experienced pilot, has navigated on the
Great Lakes for over thirty years. In the winter of
1985, while the, Seaway was closed for the winter,
however, he was temporarily laid off. When the
Great Lakes Pilotage Authority asked the defen
dant to take a licensed pilot on board the Canada
Marquis, on the ship's arrival in waters under its
jurisdiction, the owner objected. According to the
owner, Captain Armstrong and the other members
of the crew met all the safety requirements of the
Act.
On May 10, 1985 it was the Selkirk Settler's
turn to return to home base. This ship was piloted
by Captain E. Grieve, also an old sea hand. The
defendant again refused to allow on board a pilot
designated by the Great Lakes Pilotage Authority.
I should mention that Captains Armstrong and
Grieve both met the requirements of subparagraph
4(1)(c)(iii) of the Regulations in every respect.
Acting pursuant to section 34 of the Act, the
plaintiff billed Misener Shipping Limited for pilot-
age charges not paid by the latter. The amount of
$17,574 is admitted, but the defendant refuses to
pay it.
The parties also admitted that, in respect of
both its ships, the defendant had complied with the
conditions contained in subparagraph 4(1)(c)(i) of
the Regulations, and that Captains M. Armstrong
and E. Grieve met the conditions of subparagraph
4(1)(c)(iii) (Exhibits D-4 and D-5). The overseas
voyages made by each of these two ships were the
subject of an admission (see D-1 and D-2). It was
noted that since their inaugural voyage in 1983 the
Canada Marquis and the Selkirk Settler have
both navigated between St. Lawrence and Great
Lakes harbours when the Seaway was open, that is
roughly from April to November, and undertaken
ocean voyages from December to April of each
year. A photo of the Selkirk Settler (the Canada
Marquis is identical) was filed as D-3.
Only the chairman of its board of directors,
Richard Armstrong, testified for the plaintiff and
we will refer to his testimony below.
Only one witness was called for the defence,
Captain Mark Vogt, director of navigation and
safety for Misener Shipping Limited. He gave the
chief characteristics of these two ships, which were
each built at an approximate cost of $42,000,000
in 1983. They fall in the category of "lakers", in
that they are built for navigation on the Great
Lakes but are of a stronger construction and have
the features and equipment necessary for ocean
navigation. Though they are able to navigate in
inland waters or on the open sea indiscriminately,
the witness refused to regard them as "salty lak-
ers", as this class of ship is not recognized either
by Canadian regulations or by the Lloyds Regis
ter. In fact, these ships can do everything that a
"laker" can do, but the reverse is not true. The
ships have obtained their certificate of inspection
and their pilots have the necessary qualification
for navigating within the waters controlled by the
plaintiff. Five masters and five deck watch officers
were trained for these ships, and Captain Arm-
strong took over the Canada Marquis on its arrival
at Sept-Îles on May 3, 1985. He has had experi
ence with Great Lakes navigation since 1950. He
was temporarily laid off at the end of the naviga
tion season in 1984 and did not return to the ship
until May 3, 1985. Captain Grieve also has wide
experience of Great Lakes navigation. At the end
of the navigation season in fall 1984, he took two
months' vacation and then returned on board his
ship, which he took to Canada, in the port of
Sept-Iles, where he took on a cargo of iron des
tined for Chicago. He later stated in re-examina
tion that in his opinion their masters and deck
watch officers, from their special knowledge of the
ships, which they have had special training in
controlling, and because of the experience they
have acquired navigating not only in Canadian
inland waters but elsewhere, are just as well or
better qualified than the plaintiffs pilot.
LAW:
There is no doubt that if the regulatory provi
sion, subparagraph 4(1)(c)(ii), is held to be intra
vires the Great Lakes Pilotage Authority Ltd. the
action must be allowed, since the Pilotage Act
provides in section 34 as follows:
34. Except where the Authority waives compulsory pilotage,
when a ship subject to compulsory pilotage proceeds through a
compulsory pilotage area not under the conduct of a licensed
pilot or the holder of a pilotage certificate, the ship is liable to
the Authority in which the compulsory pilotage area is situated
for all pilotage charges as if the ship had been under the
conduct of a licensed pilot.
In section 12 of the Act the legislature has
specified the objects and powers pertaining to a
regional authority:
12. The objects of an Authority are to establish, operate,
maintain and administer in the interests of safety an efficient
pilotage service within the region set out in respect of the
Authority in the Schedule.
Accordingly, in addition to its powers of main
taining and administering a pilotage service, the
Authority has a regulatory power. Section 14
provides:
14. (1) An Authority may, with the approval of the Gover
nor in Council, make regulations necessary for the attainment
of its objects, including, without restricting the generality of the
foregoing regulations
(a) establishing compulsory pilotage areas;
(b) prescribing the ships or classes of ships that are subject
to compulsory pilotage;
The judgments rendered by both the Supreme
Court and the Federal Court of Appeal in the
Alaska Trainship case provide important clarifica
tion of the concept of navigational safety contained
in section 12 of the Act and the scope of subsection
14(1), in particular its paragraph (b).
Counsel for the plaintiff does not question the
power of any court of law to vacate a regulation
which is not consistent with the objects stated in
the enabling Act: The King v. National Fish Com
pany Ltd., [1931] Ex.C.R. 75, at page 81; Texaco
Canada Ltd. v. Corporation of City of Vanier,
[1981] 1 S.C.R. 254. Similarly, when an adminis
trative authority performs an act in the course of
its duties it must not base that act on consider
ations unrelated to the legislation. It must take its
cue solely from the spirit of the legislation creating
it and the objects contemplated by that legislation:
Prince George (City of) v. Payne, [1978] 1 S.C.R.
458, at page 463.
In section 14 the Act confers on Authorities the
power to enact regulations "necessary for the
attainment of [their] objects", and these may
include "prescribing the ships or classes of ships
that are subject to compulsory pilotage".
This provision raises two questions: (1) what are
general regulations necessary to the attainment of
the objects? Are they whatever may be suitable for
attainment of the objects, or was the intention by
this means to further limit the discretionary power
of the Authority? (2) How far should the concept
of navigational safety, the primary object of the
Act, be taken?
On the first question, it would appear that by
using the word "necessary" rather than "useful"
or "suitable", words which are sometimes found in
provisions in which the legislature confers a
regulatory power, Parliament intended to further
limit not the exercise of that power, since it took
care to, add in the enabling provision "without
restricting the generality of the foregoing", but to
limit it to its true object, navigational safety. In
their work on administrative law [Traité de droit
administratif] (Tome 1, page 955) Dussault and
Borgeat make the following observation regarding
legislation f which allows a regulatory body to
"adopt all regulations necessary to give effect to a
statute":
[TRANSLATION] In such a case, it is clear that Parliament
does not want to rely solely on the discretion of the regulatory
authority, and prefers to impose an objective test of whether
the regulations adopted are "necessary". Such a provision, far
from increasing the discretion of the body with regulatory
powers, actually limits its eventual scope by imposing on it a
further condition or requirement which provides even more
basis for a legal challenge. See The Municipality of Metropoli
tan Toronto v. The Corporation of the Village of Forest Hill,
[1957] S.C.R. 569.
As regards the objects contemplated by the
Pilotage Act, which Authorities must refer to in
exercising their regulatory powers, the Supreme
Court in Alaska Trainship (op. cit., at pages
268-269) took care to explain these:
It is obvious from the opening words of s. 14(1) that the
regulation-making power of an Authority is circumscribed by
the requirement that the regulations must be in pursuance of or
in conformity with its objects. Those objects are specified in
s. 12 of the Act in the following terms:
12. The objects of an Authority are to establish, operate,
maintain and administer in the interests of safety an efficient
pilotage service within the region set out in respect of the
Authority in the Schedule.
I would emphasize that s. 14(1) speaks of "regulations neces
sary for the attainment of its objects". The fact that these
words are followed by the words "including, without restricting
the generality of the foregoing", does not, in my opinion,
enlarge the regulation-making powers although it would com
mand a liberal construction of the dominating consideration "in
the interests of safety" specified in s. 12. The regulation-mak
ing authority under s. 14 is concerned fairly exclusively with
the establishment of pilotage areas and with licences and
pilotage certificates and is thus closely connected with safety of
a pilotage service. [My emphasis.]
In that case, as we wrote at the outset, the Court
had to determine the validity of a regulation
making a ship's place of registry a condition for
exemption from compulsory pilotage. Dickson C.J.
stated that there was no connection between a
ship's flag and navigational safety. The provision
at issue was accordingly held ultra vires the Au
thority as regards regulation.
Counsel for the plaintiff in no way disputed the
correctness of the judgment in Alaska Trainship,
supra. On the contrary, relying on the aforesaid
observation of the Chief Justice, he argued:
"[that] a liberal construction of the dominating
consideration 'in the interests of safety' specified in
s. 12" should lead this Court to conclude that
subparagraph 4(1) (c) (ii) of the Regulations is
intra vires the regulatory authority conferred on
the Authorities by the Act. He alleged that the
three criteria set forth in paragraph 4(1) (c) of the
Regulations cannot be separated and each of them
relates to navigational safety. In his submission,
the objective contemplated by the Regulations is to
favour regular users of the system, namely those
who are familiar with navigation in Canadian
inland waters.
I think there can be no question that a liberal
construction is essential. However, that construc
tion should not stray beyond the limits indicated
by sections 12 and 14 of the Act. The ultimate
purpose of any regulation has to be the provision
of a pilotage service intended to guarantee naviga
tional safety. It follows that a regulation will not
be valid if, for example, it was adopted primarily
for financial reasons. In the case at bar counsel for
Misener Shipping Limited, while not arguing that
the plaintiff acted in bad faith, suggested that the
board of directors, which is made up in part of
pilots, had a certain interest in adopting the provi
sion. The methodical application of this regulation
considerably reduces the number of ships which
will be exempt from compulsory pilotage. In the
Alaska case, supra, the Federal Court of Appeal
and the Supreme Court refused to deny the Au
thority, in the absence of persuasive allegations of
bad faith, the power to exercise its regulatory
authority, even though there may be a resulting
pecuniary benefit (pages 273-274 S.C.R.). Never
theless, it is clear from these two judgments that
this "interest" can be taken into account when
there is a question of whether the requirement of
compulsory pilotage is indeed connected with navi
gational safety and not strictly considerations of
an economic or financial nature. In the latter case,
such a requirement would not be consistent with
the objects contemplated by the enabling Act.
In Alaska Trainship, supra, the Supreme Court
adopted the reasoning of the Federal Court of
Appeal as to what is included in the concept of
"navigational safety". Le Dain J. (as he then was)
said the following (op. cit., pages 78-79 F.C.):
While safety is best assured by actual verification and certifi
cation of an officer's competency for the conduct of a vessel in
a particular pilotage area, I am of the view that country of
registration or ship's flag cannot be said, as a matter of
principle, to be wholly irrelevant to the question of safety of
navigation as it is affected by the conduct of the vessel. Apart
from such factors as size, manoeuvrability and navigational
aids—factors related to the physical characteristics of a ship
and its equipment—the essential factors bearing on safety of
navigation, in so far as the conduct of the vessel is concerned,
are the competency of the master or officer who has the
conduct of the vessel and his knowledge of the local waters.
Country of registration may raise a presumption of competency
and knowledge of local waters. It may not be a sufficient
'criterion by itself but it cannot be said to be wholly irrelevant to
the question of safety.
On the other hand, I am of the opinion that in the context of
section 9(2)(a)(iii) of the Regulations country of registration is
not relevant to the question of safety. Since the requirement of
safety is assured by the other condition specified therein con
cerning the competency of the master or deck watch officer and
his experience with local waters, country of registration is a
superfluous requirement and can only be there to serve some
other purpose not authorized by the Act. It was common
ground that apart from the country of registration the S.S.
Alaska fell squarely within the conditions of this exception to
compulsory pilotage. I agree with the contention of the owners
and operators of the vessel that this provision discriminates
against them on a ground that, in the particular context, is not
authorized by the Act. The same can be said, I think of section
10(1)(a) of the Regulations with respect to waiver. There the
reference to American registration may serve to indicate the
nature of the certificate of competency that is required, but I
think the same principle applies. Where the conditions of
waiver are spelled out in terms of specific competency and
experience with the local waters, country of registration is
irrelevant. [My emphasis.]
To use the language of Dickson C.J., the issue in
the case at bar may be expressed as follows: "The
short question is whether conditioning the claim
for exemption on ... [the fact that a ship has not
left Canadian inland waters] can fairly be said to
be a matter of or connected with safety in realiza
tion of the objects of the Authority under s. 12"
(page 275 S.C.R.).
In order to enjoy the exemption specified in
paragraph 4(1) (c) of the Regulations, the defen
dant must meet the three criteria it contains. For
greater clarity we again reproduce a part of this
section:
4. (1) Subject to subsection (2), every ship of more than 300
gross registered tons is subject to compulsory pilotage unless it
is
(c) a ship that
(i) is inspected and certified as to safety on behalf of the
Board of Steamship Inspection established pursuant to the
Canada Shipping Act,
(ii) navigates only on the Great Lakes or inland waters of
Canada except for occasional home-trade voyages, and
(iii) is under the conduct of a master or deck watch officer
who
(A) is a regular member of the complement of the ship,
(B) holds a valid certificate of competency of the proper
grade and class issued by the Minister of Transport or
recognized by him for the purpose of subsection 130(1)
of the Canada Shipping Act, and
(C) has been certified within the preceding twelve
months by the owner of the ship as having completed, in
the three year period preceding the date of the certifi
cate, in the capacity of master or deck watch officer, not
less than ten one-way passages of the compulsory pilot-
age area in which the ship is navigating; [My emphasis.]
Bearing in mind the definition of "safety" as
stated by the Court of Appeal, there is no doubt
that subparagraphs (i) and (iii) impose require
ments for compulsory pilotage which are entirely
consistent with the objectives contemplated by sec
tions 12 and 14 of the Act. The first of those
subparagraphs relates to the physical characteris
tics of the ship and its equipment. Marine safety
clearly requires that only ships in good condition
may sail. The third subparagraph concerns the
competence of the officer in charge of the ship. It
goes without saying that he has the heavy burden
of maintaining the safety of his own ship and of
those he will have to pass on his way. Moreover, it
was admitted by the plaintiff that Misener Ship
ping Limited complied with the requirements of
subparagraphs 4(1)(c)(î) and (iii) of the Regula
tions (Exhibits D-4 and D-5). Testifying as to the
reasons which led the board of directors to adopt
subparagraphs 4(1)(c)(i),(ii) and (iii) of the Regu
lations, Mr. Richard Armstrong, the chairman of
the board, had no difficulty justifying the existence
of the first and last of these subparagraphs. How
ever, when it came to defending the reason for the
second subparagraph, he was much less confident
and persuasive. On that provision, he restated the
plaintiff's major argument that navigational safety
requires a comprehensive knowledge of inland
waters and that the disputed subparagraph, in
pursuit of this objective, is designed to ensure that
only competent pilots are allowed to ply the
Seaway. Mr. Armstrong was very hesitant when
asked to explain the logic of a regulation requiring
an oceangoing ship which might make a single
overseas voyage to use the services of the plaintiffs
pilot on its return.
A. Well, we don't know when a vessel goes out that it's going
to do one (1) voyage or any voyages or whether it's going
to Rotterdam or Leningrad or the Middle East or South
America or Africa. We don't know where it's going and
we don't know when it's coming back. Consequently, the
Regulation is drawn up in a general fashion.
Q. And the Regulation is there to try and ensure that the
vessels that are exempt are safe in navigation?
A. That's the basis of it, yes.
Q. Then why, if a vessel like the Settler or the Marquis goes
to Europe in the winter, they become unsafe?
A. Well, I don't know exactly why they become unsafe, but I
am going to be sure that the crew that's on there is
probably doing navigation, virtually open-water naviga
tion. It's my understanding that when they go into a
foreign port, that the vessel is handled by a foreign pilot
and, consequently, the crew isn't necessarily handling the
vessel—it's being done by other persons—and that when
the crew is handling the vessel, it's probably in open-
water situations where it's a different kind of navigation
as opposed to confined waters and the weather conditions
and things like that that go with the Great Lakes.
The witness also mentioned several times that
this requirement of the Regulations was designed
to "refamiliarize" with Canadian inland waters a
crew which had been temporarily absent from
them.
The following extract from his testimony indi
cates the reasoning behind this condition:
BY ME JACQUES LAURIN: (resuming cross-examination)
Q. Now, couldn't that mention of the trade routes of the ship
be taken out and that the Regulation would not really
change, that everything has to do with the important
factors:—knowledge of the master or the deck-watch
officer?
A. Well, I don't think that taking it out would necessarily
help the situation. It was there, as I said, to recognize a
condition where vessels transited or navigated or had
voyages in the Great Lakes, by given type of vessel, that
crews that were—that will qualify and who were part of
that vessel. And that was the—that was the criteria and
why an exemption was made and why the certificate
issue, I suppose, was not imposed immediately.
Q. But—would you not agree with me that that is redun
dant, it really has no bearing on the important factors of
knowledge of the master or the deck-watch officer?
A. No, I don't think it's redundant. I think that it has a
useful purpose and, when combined with the other ele
ments. Because, as I say, you don't know whether a vessel
is going, when it goes outside, whether it's going to be
chartered outside for a year or if that crew is going to
stay with it or just what is going to happen when that
vessel goes. And that then puts us in the position of
having to write some kind of a Regulation that says if you
are out for ten (10) days, you can do something; if you're
out for eleven (11), you can't.
Q. That's the only useful purpose, in your view....
A. Well, we have....
Q. (interjecting) ... the fact that the vessel can be outside
and be chartered for a year?
A. This criteria has a useful purpose in trying to establish a
degree of safety within the Great Lakes.
Q. But what does that have to do with the people who pilot
the ship on the Great Lakes?
A. I don't think I understand your question.
Q. You're saying that it has a useful purpose because she
may be chartered or may be outside the system, and
you've maintained several times that the most important
element was the knowledge of the master or the deck-
watch officer of the local conditions of navigation
Now, I'm asking you: when the ship comes back—
she'd gone outside for a year—what does the element of
trade-routes of the ship have to do with this question of
safety based on local knowledge?
A. Well, that has to do with the—again, if the crew is a part
of that vessel that's been outside for a year and certainly,
in that year, they haven't been doing the navigation of the
vessel; they haven't had the experience of the Great
Lakes—probably not up-to-date necessarily—with the
changing conditions and high water and whatever might
have taken place; navigational aides [sic] changed or out
of place or removed, or added to—whatever.
Q. If I accept what you're saying, even though a master
who's exempted doesn't trade for three (3) years, he will
come back on the ship, he'll be exempted. But if he does
one (1) voyage outside or the ship on which he's assigned
has done one (1) voyage outside and he comes back in the
Lakes in the next year, then he's no longer exempted?
A. Well, that does—that does happen under the Regulation,
that's the effect of it. As I say, that was established in the
first instance as a bridge situation and I don't believe it
was ever intended to remain in that, actually, because
everywhere else, you'll find that they have to do a mini
mum of five (5) trips every year and it was an interim
measure to bring about something else and the various
resistance and pressure of various people that they were
brought about.
In his examination for discovery, Mr. Arm-
strong had already had difficulty justifying the
reason for the disputed subparagraph:
Again in this cause, was the sole reason you required the vessel
to take a pilot due to the fact she had traded in Europe and
beyond the limits set out in the Regulations?
Answer: Yes, it has traded beyond the limits of the Regulation.
Question: In your view, does, from a, let's say, a shipping point
of view, navigational point of view, does the whereabouts of a
ship affects [sic] its safe conduct? That is not clear. Let me try
again.
Do you think it matters, from a safety point of view, where the
ship has traded?
Answer: There is probably a significant element of safety that
is involved in that the vessels that we are talking about are
so-called "salty-lakers". They are not designed and built like a
Laker. They are built in a different fashion, they have a
different construction, a different design; and, therefore, they
have firesides and flarebows and far more sail area to be
affected by waves—by wind and wave effects handling and also
the fact that when they are outside of the system, the masters
on those vessels are probably doing largely ocean navigation.
When they are in those European and other ports, they are
being handled by pilots of the nationality of the country that
they are visiting and so, I think that there is an element of
safety involved.
With respect to the matter of the design of the vessel and the
handling of it when they do come back into the Lakes system,
which is a confined system of narrow channels and locks and a
great deal of ship handling and a great deal of weather, they
can affect the handling of it.
Question: But wouldn't it, in these cases where we are talking
about the Canada Marquis and the Selkirk Settler—they were
under, were they not under the command of masters who
themselves were exempt from pilotage because they had com
pleted the requisite number of trips?
Answer: They had masters. On that give me the exact require
ment, but the point that I was making had to do with the fact
that when a vessel does go outside, there is a period of time that
their familiarity with the Great Lakes is not put into use and
even the handling of the vessel in confined areas is not being
done by that master in the foreign ports. It is being done by the
pilots.
In short, the plaintiff submitted that since navi
gational safety requires a comprehensive knowl
edge of inland waters, the disputed provision meets
this requirement as it ensures that ships moving
along the Seaway will be piloted by competent
officers.
In my view, the mere fact that a ship leaves
Canadian inland waters cannot have the effect of
transforming it into a danger to navigational
safety (in the sense defined by the Federal Court
of Appeal) when it eventually returns to Canadian
territory. As Le Dain J. said in Alaska Trainship,
supra, navigational safety in the circumstances is
guaranteed by the other conditions set out in para
graph 4(1)(c) of the Regulations, in particular the
requirements regarding maintenance of the ship
(4(1)(c)(i)) and the competence of the officer
piloting it (4(1)(c)(iii)). In short, the criterion
stated in subparagraph 4(1)(c)(ii) is "a super
fluous requirement and can only be there to serve
some other purpose not authorized by the Act"
(Le Dain J., at page 78). As stated by the Federal
Court of Appeal, safety consists of three parts: (1)
factors connected with the physical characteristics
of the ship; (2) the competence of the master or
officer responsible for piloting the ship; and (3)
their respective knowledge of local waters. Is a
ship less seaworthy or its master less competent
because it is re-entering Canadian inland waters?
In the case at bar the evidence showed that when it
returned to the Seaway the Canada Marquis was
taken over by Captain M. Armstrong. There is no
question that he was highly qualified to do this,
since he had been navigating on the said Seaway
for over thirty (30) years. What is more, he could
not have "tarnished" his river navigational knowl
edge since he had not been on ocean voyages
during the winter. It will be recalled that Mr.
Armstrong was temporarily laid off during this
time. Moreover, the testimony of Captain Vogt, a
witness for the defendant, established that a
master who navigates overseas during the winter is
at least as competent as one who waits patiently at
home for the return of warmer weather.
Competence and seaworthiness are the only two
criteria for determining the concept of safety. As
the Court of Appeal said, it is possible that the
fact that a ship has never left the Great Lakes
region may raise a presumption of competence and
knowledge of local waters (page 78), but that is
still not a determining criterion in the sense of
sections 12 and 14 of the Act.
The plaintiff further argued that the adoption of
subparagraph 4(1)(c)(ii) of the Regulations was
authorized by paragraph 14(1) (b) of the Act,
which authorizes in the interest of safety the pro
mulgation of regulations prescribing the ships or
classes of ships that are subject to compulsory
pilotage. The plaintiff relied in particular on the
following passage from the reasons of Le Dain J.
(page 84):
The Authority may well choose as an efficient approach to the
control that must be exercised in the interests of safety to make
all vessels of a certain size or character subject to compulsory
pilotage, with the only exception to the use of a licensed pilot
being the provision for pilotage certificates. I cannot see how
such an approach could be said to be an ultra vires exercise of
its regulatory authority.
In the submission of the plaintiff, subparagraph
4(1)(c)(ii) in practice makes a distinction between
ships navigating on the Great Lakes: "lakers" as
such and "salty lakers", which do not navigate
only on the Great Lakes or Canadian inland
waters, but are also built and fitted out for trans
oceanic navigation. In its submission, there is a
difference between these two (2) classes of ships,
in that the "salty lakers" have all the characteris
tics of "lakers" but the reverse is not true. Essen
tially, the subparagraph has the practical effect
"[of making] all vessels of a certain size or charac
ter subject to compulsory pilotage (that is, those
leaving Canadian inland waters)", which the
plaintiff submitted does not make it ultra vires to
that extent.
I should mention that before stating the above
opinion (for it was in fact only an opinion on a
possible amended regulation), Le Dain J. reaf
firmed that the Authority "was not entitled to ...
attempt to limit a proposed category of exemption
or waiver by a criterion irrelevant to safety" (page
84). It is true that regulations concerning the
character and size of a ship may be justified in
terms of their possible impact on navigational
safety. A ship may in fact constitute a significant
source of danger to other ships or, on the contrary,
none at all, depending on its tonnage and size.
Nonetheless, the ordinary meaning of the words
used in paragraph 14(1)(b) of the Act leads the
Court to conclude that the classes of ships men
tioned in this section are distinguished from each
other according to certain criteria based on the
physical characteristics of the ships. This is what
Le Dain J. means when he speaks of "all vessels of
a certain size or character" (My emphasis). In the
case at bar, subparagraph 4(1)(c)(ii) creates a
distinction which is based not on such distinctions
of a physical nature but on the displacement of
certain ships. In my opinion, this is not the type of
distinction authorized by paragraph 14(1)(b) of
the Act. In any case, even assuming that this
distinction is legitimate it has to meet a further
criterion. It must be justifiable in terms of the
safety objective stated in the Act. As pointed out
above, there is no connection between the fact of a
ship leaving Canadian waters and the concept of
safety as defined by the Federal Court of Appeal
in Alaska Trainship, supra. It is wrong to say that
subparagraph 4(1)(c)(ii) of the Regulations makes
a distinction between classes of ships navigating on
the Great Lakes. Rather, it seeks to make a dis
tinction which has no basis because it is not justi
fied by the Act.
Moreover, it appears from the evidence that this
slight difference suggested by the plaintiff between
the "lakers" and the "salty lakers", besides not
being recognized by subparagraph 4(1)(c)(ii), does
not exist in fact. Nowhere is there any mention of
differences between these two types of ships.
Lloyds Registry, which lists all ships operating on
the seas and oceans, contains no class of ship
classified as "salty lakers". I conclude that sub-
paragraph 4(1)(c)(ii) of the Regulations creates
discrimination against the defendant which is not
authorized by the Act.
CONCLUSION:
I am therefore of the opinion that subparagraph
4(1)(c)(ii) is ultra vires the regulatory capacity
conferred on the Authority by sections 12 and 14
of the Act, in that it has no connection with
navigational safety as defined by Le Dain J. in
Alaska Trainship, supra.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.