Date: 20010129
Docket: IMM-2639-99
BETWEEN:
GREER SHIPPING LTD.
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-3997-99
AND BETWEEN:
COLLEY MOTORSHIPS WEST LTD.
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-3998-99
AND BETWEEN:
COLLEY MOTORSHIPS WEST LTD.
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] These applications for judicial review, consolidated for hearing, raise the issue of the proper interpretation of the term "transportation company" as found in the Immigration Act, R.S.C. 1985, c. I-2, as amended ("Act").
[2] In each application the issue arises in the context of subsection 85(3) of the Act which makes a transportation company liable to pay all costs for removing a person that the company brought to Canada if the person was not granted admission and at the time of arrival in Canada was not in possession of a valid visa.
PRELIMINARY MATTER
[3] At the commencement of the hearing counsel advised that an agreement had been reached between the parties that the Minister would consent to the application for judicial review being allowed in one of the applications brought by Colley Motorships West Ltd., IMM-3998-99, subject to the parties being able to make submissions as to costs. The remaining two applications, which involve very similar facts, were fully contested and argued. While this decision was under reserve the Department of Citizenship and Immigration recovered the full removal costs at issue in IMM-3997-99 from the shipowners. That proceeding is now moot and it has been discontinued.
[4] The reasons that follow deal solely with the remaining contested application brought by Greer Shipping Ltd. ("Greer"), IMM-2639-99.
[5] After the release of these reasons counsel will be provided with the opportunity to make written submissions on the issue of costs in all applications.
THE FACTS
[6] Greer is a British Columbia company which provides services to shipping industry customers. It neither owns, operates nor charters any vessels, and neither has it done so in the past.
[7] Greer provides services in a wide variety of circumstances, involving it in a number of different types of relationships. Greer may be appointed by vessel owners, operators or charterers. Where services are provided to tramp vessels, as in the present case, there is often no long-term relationship with the vessel owner, operator or charterer.
[8] In July of 1992 Greer was contacted by a freight forwarder, broker and air cargo agent, Dyson Shipping Company, Inc. ("Dyson") on behalf of the Food Corporation of India in respect of a number of vessels fixed to load wheat from Canada's west coast. The present dispute arises in respect of one of those vessels, the M/V Trade Carrier.
[9] The relevant edition of Lloyds Register of Ships showed the M/V Trade Carrier to be owned by Trade Venture Inc. and managed or operated by Marine Management Services M.C. ("Marine Management"). The M/V Trade Carrier was not a passenger ship.
[10] Greer said that it assumed that the vessel was under charter to the Food Corporation of India, and that the terms of the charter allowed the charterer and its North American agent Dyson to appoint Greer to assist the vessel in British Columbia.
[11] Greer had worked for Dyson prior to 1992, but believes that Dyson has since gone out of business.
[12] For reasons explained only as "[b]y reason of our appointment" Greer began communicating with Brokerage and Management Corp. ("Brokerage") of New York which Greer apparently presumed either owned or managed the vessel. No other evidence was tendered as to Brokerage's precise role in this matter. Greer, in accordance with its practice when requested to assist a vessel, advised Brokerage of the expected timing and requested funds to cover its disbursements and fees.
[13] Telexes put in evidence reflect that Greer sought express instructions from Brokerage before incurring overtime expenses, was given specific authority to sign bills of lading with specific direction on the content of those bills of lading, and sought specific instructions from Brokerage as to bill of lading release instructions.
[14] The Master of the M/V Trade Carrier wrote to Greer identifying Greer as "Charterer's agents" and the Master provided his authority to Greer to sign bills of lading on specified conditions.
[15] The services provided by Greer to the M/V Trade Carrier were as follows:
| (a) clearing the Vessel into Canada, by preparing and submitting customs documents, and by submitting a crew list and a health certificate prepared by the crew of the Vessel; |
| (b) arranging for inbound and outbound pilots through discussions with the Pacific Pilotage Authority; |
| (c) arranging for tugs and line handlers by contacting the tug company and terminal; |
| (d) arranging for launch services to and from the Vessel while at anchor; |
| (e) liaising with the Canadian Wheat Board and the Grain Clearance Shippers Association which, it was understood, were in charge of providing cargo for the Vessel, designating and arranging for a berth to load the Vessel, loading cargo into the Vessel and which would pay any demurrage for delays in loading caused by unavailability of cargo; |
| (f) arranging for garbage collection from the Vessel; |
| (g) arranging for a telephone set-up on the Vessel; |
| (h) arranging for survey; and |
| (i) arranging for the payment of harbour dues, berthage charges, the Chamber of Shipping Assessment, clearance charges, crew expenses, including medical, transportation and communication. |
[16] Greer signed a "Statement of Fact" as charterer's agent setting out the details of the vessel's movements in the Port of Vancouver. The Crew Index form published by the then Minister of Employment and Immigration noted Greer to be the "Agent" of the ship. A dispute arose as to who would be responsible for delay costs. The Master was instructed by Brokerage to sign the bills of lading rather than Greer. Greer, on behalf of Dyson, wrote to Brokerage advising that Greer, as agent for Dyson "hereby hold the Master and/or owners responsible for any delay costs".
[17] On July 28, 1992, the day after the vessel left Vancouver, Greer advised Brokerage that on the vessel's departure from Vancouver six crew members were not on board. Greer believed Employment and Immigration Canada to be aware of this at the time. Due to legal proceedings unrelated to these proceedings, the vessel remained in Canadian waters until August 1, 1992. During that time Employment and Immigration Canada took no steps to detain the vessel.
[18] This dispute concerns one of the deserting crew members, Mohamed Nizam. Mr. Nizam remained in Canada without the authorization of the immigration authorities and a warrant was issued for his arrest under subsection 103(1) of the Act.
[19] On September 9, 1992, Employment and Immigration Canada, as it then was, wrote to Greer Shipping advising:
| Please be advised that the Immigration Act holds the transportation company liable for detention and deportation costs (Immigration Act 87(3)) and we, therefore, are asking for a deposit of five thousand dollars ($5,000.00) under the authority of Section 93 of the Immigration Act. |
The deposit was never received.
[20] On April 22, 1993, Mr. Nizam reported to a Canada Immigration Office where he was arrested and where he made a claim for refugee status in Canada. The claim was unsuccessful, but it was not until April 26, 1997 that Mr. Nizam exhausted his avenues under the Act so that a previously issued conditional departure order became a deemed deportation order.
[21] Thereafter Mr. Nizam failed to appear for removal and another warrant for his arrest was issued. On February 4, 1998 he was arrested in Saskatoon after making a fresh refugee claim under a different name.
[22] On February 6, 1998, the immigration authorities advised Greer, as the agent for the transportation company which had brought Mr. Nizam to Canada, of Mr. Nizam's scheduled departure and the estimated removal costs. Greer advised the authorities to proceed with the removal as Greer would not be making arrangements to convey Mr. Nizam.
[23] Mr. Nizam was removed and on March 6, 1998 Citizenship and Immigration Canada ("CIC") submitted to Greer the particulars of the removal costs which totalled $10,640.56. Monthly statements were sent to Greer from April to November of 1999.
[24] Two written notices were then provided to Greer advising that CIC would take steps to recover the debt by way of set-off against any monies that might become payable to Greer by the federal government. Payment was not received from Greer.
[25] On July 5, 1999, CIC received from Revenue Canada $10,640.56 which amount came from Greer's GST refund account.
THE ISSUES
[26] The following issues must be decided:
| 1. Which definition of a transportation company governs Greer's application for judicial review? |
| 2. Is Greer an agent of a transportation company within the applicable definition contained in the Act? |
| 3. Was there any breach of procedural fairness due to delay and lack of disclosure? |
| 4. Were the monies said to be owing by Greer properly set off? |
ANALYSIS
(i) Standard of Review
[27] Counsel for the applicant submitted that at issue is the propriety of the Minister's determination that it is a transportation company. That issue was said to raise a question of law going to jurisdiction. The standard of review was, the applicant submitted, correctness.
[28] The Minister characterized the question as of one of mixed law and fact. Applying the pragmatic and functional approach she submitted that the standard of review was reasonableness simpliciter.
[29] As noted by the Supreme Court of Canada in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 (S.C.C.) at paragraph 37, the distinction between what is a question of law and what is a question of mixed law and fact may in some cases be difficult to decipher. In the present case, no reasons were given as to how the determination was made that Greer was a "transportation company". It is not possible, therefore, to determine whether any error was caused by misapplication of the law, or by considering irrelevant evidence, or by considering all of the required evidence (and only relevant evidence) and then reaching the wrong conclusion, or otherwise. If any error was made in applying the correct law to the facts it is a matter of mixed law and fact which would attract a more deferential standard of review.
[30] In the result, I propose to ascertain the governing legal principles and then determine if, applying those correct principles, the decision is one which can stand up to a somewhat probing examination (being a review on the standard of reasonableness simpliciter).
(ii) Which definition of a transportation company governs Greer's application for judicial review?
[31] The statutory scheme with respect to the obligations and liabilities of transportation companies is found in Part V of the Act. Sections 85, 86 and 87 of the Act, as applicable to these proceedings, in material part, are as follows:
| 85. (1) Subject to subsection (2), a transportation company that has brought a person to Canada may be required by the Minister to convey that person, or cause that person to be conveyed,
...
(c) to such country as is determined pursuant to subsection 52(2) or (3), in the case of a person who is required to leave Canada by reason of the making of a removal order.
...
85. (5) This section does not apply in relation to persons who enter Canada as or to become members of a crew.
86. Where a person enters Canada as or to become a member of a crew of a vehicle and ceases to be a visitor pursuant to subsection 26(1), the transportation company that operates that vehicle may be required by the Minister to convey that person, or cause that person to be conveyed, to the country from which that person came to Canada, or to such other country as the Minister may approve at the request of the company, and the company is liable to pay all removal costs in respect of that person.
87. (1) Where, pursuant to section 85 or 86, a transportation company is required to convey a person, or cause a person to be conveyed, from Canada, it shall be notified of that requirement and be given an opportunity to convey that person, or to cause that person to be conveyed, on one of its own vehicles or otherwise.
87. (2) Where a transportation company referred to in subsection (1), after having been notified, is not prompt in furnishing transportation, the Minister may direct that arrangements be made for the removal from Canada, by another transportation company and at the expense of Her Majesty, of the person to be conveyed from Canada.
87. (3) The transportation company referred to in subsection (1) is liable, on demand, to reimburse Her Majesty for all removal costs incurred under subsection (2) in respect of the person conveyed from Canada.
|
|
| 85. (1) Sous réserve du paragraphe (2), le transporteur qui a amené une personne au Canada peut être tenu responsable par le ministre du transport de celle-ci à destination_:
...
c) du pays désigné conformément aux paragraphes 52(2) ou (3), dans le cas d'une personne qui doit quitter le Canada par suite d'une mesure de renvoi.
...
85. (5) Le présent article ne s'applique pas aux personnes qui entrent au Canada à titre de membres du personnel d'un véhicule ou pour le devenir.
86. Dans le cas où une personne entre au Canada à titre de membre du personnel d'un véhicule ou pour le devenir et perd la qualité de visiteur aux termes du paragraphe 26(1), le transporteur qui exploite le véhicule peut être tenu responsable par le ministre du transport de la personne à destination du pays d'où elle est arrivée, ou du pays agréé par le ministre à la demande du transporteur, ainsi que des frais de renvoi de la personne.
87. (1) Le transporteur doit être avisé de l'obligation de transport que lui imposent les articles 85 et 86 et doit avoir la possibilité de s'en acquitter au moyen de ses propres véhicules ou par tout autre moyen.
87.(2) Si le transporteur, une fois avisé, ne fait pas diligence, le ministre peut ordonner que les dispositions soient prises pour faire effectuer le transport par un autre transporteur, aux frais de Sa Majesté.
87. (3) Dans le cas visé au paragraphe (2), le transporteur à qui incombait le transport est tenu de rembourser à Sa Majesté, sur demande, les frais de renvoi.
|
|
| [32] "Transportation company" is defined in the Act. As relevant to these proceedings, the definition found in subsection 2(1) of the Act is: |
| "transportation company"
(a) means a person or group of persons, including any agent thereof and the government of Canada, a province or a municipality in Canada, transporting or providing for the transportation of persons or goods by vehicle or otherwise.
|
« _transporteur_ » Personne ou groupement, y compris leurs mandataires, qui assurent un service de transport de voyageurs ou de marchandises par véhicule ou tout autre moyen. ... La présente définition s'applique au gouvernement fédéral et provinciaux ainsi qu'aux municipalités, dans la mesure où ils exploitent ou fournissent un tel service.
|
| [33] "Transportation company" was formerly defined as follows: |
| "transportation company" means a person or group of persons carrying or providing for the transportation of persons,
(a) where the expression appears in subsection 90(2), sections 93 and 94 and paragraph 115(1)(bb), by vehicle, bridge, tunnel or otherwise, and
(b) in any other case, by vehicle or otherwise, but not by bridge or tunnel,
and includes any agent thereof and the Government of Canada or the government of any province of or municipality in Canada so carrying or providing for the transportation of persons.
|
« transporteur » désigne les personnes ou groupes de personnes et leurs mandataires ainsi que les gouvernements fédéral, provinciaux ou les municipalités du Canada qui transportent ou font transporter des personnes
a) en recourant à des véhicules, à d'autres moyens ou en leur faisant emprunter un pont ou un tunnel, lorsque le terme « transporteur » se retrouve au paragraphe 90(2), aux articles 93 et 94 et à l'alinéa 115(1)bb), et
b) en recourant à des véhicules ou à d'autres moyens, mais sans leur faire emprunter un pont ou un tunnel, lorsque le terme « transporteur » se retrouve ailleurs dans la présente loi.
|
| [34] The definition was amended by An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49 which came into force on February 1, 1993. The material change was to add to the definition those who transport or provide for the transportation of goods. |
| [35] Greer stated that the M/V Trade Carrier was a cargo vessel so that to have an arguable basis for imposing liability upon Greer to pay for the removal of Mr. Nizam, the Minister must establish that it is the amended definition of a transportation company, referring to those who transport goods, which applies. |
| [36] Greer then submitted that to so argue the 1993 amendment must be given retroactive effect, but that there are presumptions that legislation is not intended to have a retroactive application and that legislation is not intended to interfere with vested or accrued rights. Greer stated that while these presumptions can be rebutted, there must be a clear indication of Parliament's intent to legislate with retroactive effect. Greer submitted that a review of the amending legislation reveals no such intent, and in fact supports the opposite view. Greer pointed to section 119 of the amending legislation which provides that: |
| 119. The financial liability of a person under any provision of the Immigration Act amended by this Act that arises from any act or omission done before the coming into force of the amendment to that provision shall be determined as though the amendment were not in force. |
| [37] In my view this issue is to be determined by properly interpreting section 119 of the amending legislation. In turn, this requires determination of whether Greer's financial liability is under any provision of the Act amended by the amending legislation, and if so whether the liability arises from any act or omission done before February 1, 1993. |
| [38] Greer's financial liability, if any, is triggered by subsection 87(3) of the Act which makes a transportation company liable, on demand, to reimburse Her Majesty. Subsection 87(3) of the Act was not amended by the amending legislation. |
| [39] However, for any liability to be triggered in the case of a deserting crew member, pursuant to subsection 87(1) of the Act, the transportation company must have been required, pursuant to section 86 of the Act, to convey, or cause to be conveyed, the person from Canada. |
| [40] Subsection 87(1) and section 86 of the Act were amended by the amending legislation. |
| [41] I therefore conclude that Greer's financial liability would attach under a provision of the Act which was amended. |
| [42] The next inquiry required by section 119 of the amending legislation is whether the liability arises from any act or omission done prior to the amendments coming into force. The Minister argued that liability did not arise until after Mr. Nizam was removed from Canada in 1998 and until demand for payment was made thereafter. |
| [43] While I agree that there was no obligation on Greer to pay until then, I do not agree this is determinative of the issue. Greer's liability did not arise solely out of the Minister's demand. Liability was founded on acts Greer is alleged to have been responsible for which took place in 1992. For there to be any liability on Greer Mr. Nizam must have entered Canada as a crew member and subsequently ceased to be a visitor. In the absence of those acts there could be no requirement under subsection 87(1) of the Act on Greer as an alleged agent of a transportation company. Those events took place in 1992. |
| [44] Thus I find, within the context of section 119 of the amending legislation, that Greer's alleged financial liability arises from acts done before February 1, 1993. Therefore pursuant to that section Greer's liability should be determined as though the definition of a transportation company did not refer to goods, under the prior definition of a transportation company. |
| (iii) Is Greer an agent of a transportation company within the applicable definition of the Act? |
| [45] The Minister argued that irrespective of which definition applies, Greer is liable because there is no requirement for a transportation company's business to be that of transporting persons for hire. |
| [46] The Minister submitted that in both the 1976 Act, and in the amended version, the definition of a "transportation company" includes any vessel which carries persons, irrespective of whether goods or passengers were on board. The Minister relied upon the decision of the Federal Court of Appeal in Flota Cubana de Pesca v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 303 (F.C.A.) at page 321. |
| [47] Greer submitted that the M/V Trade Carrier was a cargo carrier, and hence was not a transportation company under the previous definition found in the Act. |
| [48] In Flota Cubana, the Court of Appeal considered the current definition of a "transportation company". The Court rejected the submission that only those companies the primary business of which was the transportation of persons or goods for hire may be held liable for the costs of removing crew members. The Court of Appeal found that the term "transportation company" is meant to apply to all companies which transport or provide for the transportation of persons or goods, by vehicle or otherwise. It is not restricted to companies the primary business activities of which involve the transportation of persons or goods for hire. |
| [49] While the Court of Appeal did not interpret the definition of a transportation company contained in the 1976 Act, I find nothing in its analysis which turned on the presence of the words "or goods" added to the definition in the 1992 amendment, or on the phrase "transporting or providing for the transportation" which was substituted for the phrase "carrying or providing for the transportation". |
| [50] The Court of Appeal was strongly influenced by the presence in the Act of a number of provisions directed to recovery of expenses associated with removal of deserted crew members, and noted that crew members may be conveyed into Canada on a vessel irrespective of whether the vessel was used primarily for the transportation of persons or of goods for hire. |
| [51] The Court specifically rejected one of the strongest arguments urged before me on Greer's behalf: that significance should be taken from the fact that the French version of the current definition refers to "transport de voyageurs" which is suggestive of travellers or passengers. |
| [52] The M/V Trade Carrier without doubt transported Mr. Nizam to Canada as a crew member. Thus, applying the principles articulated by the Court of Appeal in the Flota Cubana case, I find that the owner/operator of the M/V Trade Carrier was a "transportation company" as defined in the Act as it was in 1992. |
| [53] It is next necessary to consider if Greer was an "agent" of that transportation company. |
| [54] The word "agent" as found in both the former and current definition of a "transportation company" is capable of two meanings. The word may be used in the generic sense of one who is a representative or medium of another. "Agent" may also mean a more formal relationship where one is considered at law to represent another in a manner so as to be able to affect the principal's legal position with strangers to the agency relationship. |
| [55] Greer stated that the use of the title "agent" does not of itself create an agency relationship and that the Minister has used the word "agent" as found in the definition in the generic sense when the statutory definition of a transportation company requires the more formal meaning of the word. |
| [56] In support of that submission Greer argued that when construing bilingual legislation the traditional approach is to find and give meaning to the provision which is shared by both versions of the legislation. |
| [57] Greer pointed to the fact that the French version of the definition of a transportation company uses not the word "agent" but the word "mandataire". "Mandataire" was said to put some practical and logical limit on the definition of a transportation company and to show that the intent of Parliament was to impose financial responsibility on those truly involved in bringing undocumented people to Canada. The Minister's interpretation was said by Greer to result in unfair, unjust and absurd results. |
| [58] I begin my analysis by having regard to the direction from the Federal Court of Appeal in Flota Cubana, at page 316, that courts must continue to employ ordinary principles of statutory interpretation when construing bilingual legislation: "[t]he object of the inquiry, therefore, is to search out and give expression to the legislature's intention in light of the statute's purpose, the context in which it was enacted and other interpretive strategies". |
| [59] As to the statute's purpose, in Flota Cubana, at page 321, the Court of Appeal found that the "overarching purpose [of the legislation at issue] is to transfer the costs associated with the entry of persons without status into Canada, and their subsequent removal, from the federal government to the transportation companies which brought these persons into the country. The provisions in Part V also assist in furthering the overall object of the Act, by discouraging transportation companies from conveying persons to Canada who are not legally entitled to be or remain here". |
| [60] Having regard to the purpose of Part V of the Act to transfer removal costs to the company "which brought those persons into the country" and to discourage transportation companies from bringing in illegal entrants, I believe that the more restrictive meaning reflected in the French version of the definition of a "transportation company" best accords with the purpose of Part V of the Act. The "one-off" nature of a shipping agent's relationship with a vessel and the fact that such relationship might be created when a vessel is already out of port carrying stowaways and en route to Canada, is such that I cannot reasonably conclude that a simple medium can be said to bring illegal entrants into Canada or to have any meaningful ability to discourage transportation vessels from bringing those people to Canada. I accept that requiring an "agent" to be a true agent in the legal sense puts a logical and practical limit on the definition of a transportation company, and that such limit best accords with the purpose of the legislation. |
| [61] Notwithstanding the broad interpretation given to the definition of a transportation company by the Court of Appeal in Flota Cubana, I find nothing in the reasons of the Court which requires the imposition of liability on an entity which has only a casual connection to a vessel. |
| [62] Similarly, I find nothing in my interpretation which would be contrary to the purpose of Part V of the Act. By July 28, 1992, the captain of the M/V Trade Carrier certified to immigration authorities that Mr. Nizam failed to be aboard the vessel when it departed Vancouver. The vessel remained in Canadian waters until August 1, 1992. Immigration authorities were free during that period to seize or detain the vessel for the purpose of ensuring payment, or the posting of security for payment, of removal costs. The broader interpretation of "agent" is not needed for recourse to be available. |
| [63] Moreover, when construing legislation, as a general rule, unjust or unreasonable results are viewed to be absurd results, and hence, unintended. The Minister's interpretation captures a number of different circumstances. It appears that as long as a shipping agent such as Greer provided any service to a vessel, no matter how insignificant, and whether as agent for the charterer of a vessel, the shipper of cargo, or the receiver of cargo, it would be liable as a transportation company. Greer argued that under the Minister's interpretation the Canadian Wheat Board would be an agent of a transportation company where it arranges for a terminal to load cargo on a vessel, and that a bunker broker who, for commission, arranged for the sale of fuel to a vessel in port would be an "agent thereof". |
| [64] Requiring a formal agency relationship to exist places a shipping agent or other entity in such proximity to the transportation company that the formal agent could be said to at least have some ability to discourage transportation vessels from bringing illegal entrants to Canada. It also makes it more likely that an agreement could be reached as to indemnification of the agent by the principal, a factor which might of itself provide one disincentive to owners and operators of vessels. |
| [65] Having concluded that the definition of a "transportation company" requires a formal agency relationship when referring to "any agent", it is next necessary to consider whether Greer established that the Minister's decision treating it as the "agent" of a person or group of persons carrying or providing for the transportation of persons does not meet the standard of reasonableness simpliciter. |
| [66] As to the nature of a formal agency relationship, in R. v. Kelly, [1992] 2 S.C.R. 170 (S.C.C.), the majority of the Supreme Court of Canada commented in the following manner at pages 183 and 184: |
| In The Law of Agency (5th ed. 1983), Fridman suggests at p. 9 the following definition of agency: |
| Agency is the relationship that exists between two persons when one, called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to affect the principal's legal position in respect of strangers to the relationship by the making of contracts or the disposition of property. |
| The principal must be able to place trust and confidence in the agent since the agent has the authority to affect the legal position of the principal. This is perhaps the focus of the relationship. In essence the agent acts to achieve the same results that would have been obtained if the principal had acted on his or her own account. The influence the agent can have on the affairs of the principal and the power to take action on behalf of the principal are significant. They are of such great significance that it follows as the night the day that the agent must always act in the best interests of the principal. |
| [67] In Trophy Foods Inc. v. Scott (1995), 123 D.L.R. (4th) 509 (N.S.C.A.), the Nova Scotia Court of Appeal, at page 519, quoted with approval from Fridman's Law of Agency and paraphrased the thesis of his treatise as "[t]he essence of a true principal and agency relationship is the power of the agent to affect the legal position of the principal by entering into contracts with third parties that bind the principal". |
| [68] Greer submitted that it was not an agent for the following reasons: |
| (a) it was not hired by the owner or the operator of the vessel, but rather was hired indirectly by the charterer of the vessel; and |
| (b) it had no authority to bind the principal or to alter the legal position of the principal. |
| [69] In advancing the argument that Greer was not an agent of a transportation company because it was hired not by the vessel's owner or operator but rather was hired by the charterer's agent, Greer placed reliance on the distinction to be made between those providing services at a charterer's request and those supplying services at the owner's request. Greer relied upon the decision of the Federal Court of Appeal in Jian Sheng Co. v. Great Tempo S.A., [1998] 3 F.C. 418 (F.C.A.) to assert that absent a partnership or a joint venture agreement, the operation of a vessel for the carriage of goods by sea is not a joint venture between the owner and the charterer. |
| [70] With respect to this submission, the evidence before me is to the following effect. Greer received a telex dated July 17, 1992, from Brokerage instructing Greer, among other things, to "handle the agency" of the vessel and to keep Brokerage "constantly advised of all loading instructions [Greer] received from charterers". In a subsequent telex, Greer sought instructions from Brokerage with respect to possible overtime for berthing and with respect to the bill of lading release. Brokerage advanced monies for disbursements to Greer on July 22, 1992. Further communication indicates that the shipowner approved a sample bill of lading submitted by Greer regarding the cargo, and that Greer was given authorization to sign bills of lading on behalf of the Master/vessel "in strict conformity with the sample". A letter providing such authorization referred to Greer as the "Charterer's agents". Greer's disbursement account submitted to Brokerage setting out charges in relation to the various services provided by Greer referred to Brokerage as the "Principal" and under the subheading "General" (expenses) included an "Agency Fee". In a telex dated July 28, 1992, Greer advised Brokerage that six crew members had deserted from the vessel, that CIC would require a bond totaling $30,000 U.S. and that Greer would notify Brokerage when it received an invoice. Another telex received by Greer was to the effect that Brokerage, on behalf of the shipowners, gave instructions to the vessel Master as to the specific wording of the bill of lading. On July 28, 1992, Greer advised Brokerage that "Greer Shipping Ltd. as agents for Dyson NY hereby hold[s] the Master and/or owners responsible for any delay costs relating to the Master's refusal to sign the bill of lading as stipulated in the charter party." Finally, the Crew Index form completed in respect of the deserted crew-member Mr. Nizam, dated July 30, 1992, noted Greer Shipping Ltd. to be the carrier's "agent". |
| [71] From the evidence it therefore appears that Greer performed services and worked as a representative for both the shipowner/operator (through Brokerage), and the charterer (through Dyson). |
| [72] This undercuts the effect of Greer's submission that it was not hired by the vessel's owner/operator. At the least Greer was providing services to, and acting on behalf of, the owner/operator with implicit consent. |
| [73] Moreover, while Greer relies on the Jian Sheng, supra, decision to argue that a charterer is not necessarily a carrier, I am not certain that this distinction, drawn in cases of liability for the carriage of goods at sea, is applicable to consideration of the definition of a "transportation company" under the Act. That definition does not make relevant issues of vessel ownership or charterer's status, but rather looks to that person or group of persons who "transport" or "provide" for the transportation of persons or goods. Given the policy which underlies Part V of the Act, it may well be that either the charterer or the owner of a vessel may be a transportation company to the extent that they transport or provide for the transportation of persons or goods. |
| [74] Finally, Greer's submission that it is not an "agent" because it was not hired by the owner or operator of the vessel is not supported by authority which has considered the general position of a ship's agent when acting for shipowners and charterers. In Blandy Brothers & Co., Lda. v. Nello Simoni, Ltd., [1963] 2 Lloyd's Rep. 393 (C.A.), the Court had before it a claim by shipping agents against the charterer of a number of vessels. In the course of the decision the Court commented, as a matter of law, on the authority of a ship's agent. In response to the question, "[i]s it possible to deduce from general principles and from the general law relating to the obligations of shipowners and charterers in a situation such as this what the scope of the ship's agent's authority must be unless there is some evidence which tends to enlarge it or restrict it?", Lord Justice Pearson noted, at page 404, "[t]he ship's agent is, in the normal case, the agent of the shipowner at the particular port, and the ship's agent, therefore, at that port stands in the shoes of the shipowner; and it is reasonable to suppose that he has the authority to do whatever the shipowner has to do at that port". Lord Justice Diplock agreed noting, at page 404, "[i]n those circumstances it seems to me that the learned Judge was right in saying, as he did, that the ship's agent's authority, in the absence of specific instructions, is a matter of general law. In this case, the plaintiffs were appointed ship's agents to load five cargoes at Funchal on five different ships. Such instructions, in my view, authorize the agent to perform at the port those duties which are incumbent upon the shipowner in relation to the carriage of the goods". |
| [75] In any event, I believe it preferable to analyze the nature of Greer's relationships and whether they qualify to make Greer an agent in the formal sense in all the circumstances of this matter. The fact that Greer was appointed to act in respect of the vessel by Dyson is merely one of the circumstances of the case. It alone, in my view, is not determinative of whether Greer operated as an agent of a transportation company. |
| [76] As to the nature of Greer's relationships, it is evident that the parties themselves used language indicative that they operated in an "agency" relationship. The agreement between Greer and Brokerage was for Greer to carry out the "agency of the vessel" for which Greer was paid an "agency fee" by its "Principal", Brokerage. The Master of the vessel also appears to have noted Greer as the ship's "agent" on the Crew Index form submitted to Employment and Immigration Canada. However, the language used by the parties is not determinative of the true nature of the relationship. |
| [77] I find nevertheless that Greer's situation appears to satisfy the general definition of agency as found in the authorities: Greer had express authority to act on behalf of Brokerage, the "principal", and consented at least impliedly to so act (see: Halsbury's Laws of England, 3rd ed., Vol. 1 at page 145). Greer performed a service for its principal, Greer represented the vessel and Brokerage to outsiders, and Greer could have acquired rights for its principal and subjected it to liabilities by signing bills of lading. |
| [78] While acknowledging its authority to sign bills of lading, Greer argued that its authority to do so was "ministerial" and that it had no independent discretion. Greer relied upon dicta in The Berkshire, [1974] 1 Lloyd's Rep. 185 (Q.B.) to argue that the signing of a bill of lading is a ministerial act so as to vitiate the agency quality of its relationship with the shipowner. |
| [79] I do not find this submission to be supported by authority. In [1951] S.C.R. 852">Paterson Steamships Ltd. v. Aluminum Co. of Canada Ltd., [1951] S.C.R. 852 (S.C.C.) the Supreme Court considered the effect of a bill of lading signed by shipping agents appointed by the charterer of a vessel. Justice Rand, whose reasons were concurred with by Chief Justice Rinfret and Justice Fauteux (the other members of the Court concurring with the result), stated at page 854 as a general principle that: |
| For the purpose of committing cargo to carriage, the captain, the charterer and the ship's agent are all agents of the owner, acting in the name of the captain; and where the charterer has the authority, as here, to sign for the captain, that he may appoint and act by an agent would seem to me to be unquestionable. |
| [80] Greer also relied upon dicta of the learned Prothonotary Hargrave in International Chartering Services Ltd. v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 881, IMM-9189-97, IMM-418-98 (June 18, 1998) (F.C.T.D.), to the effect that it was arguable, and perhaps a fact, that there the plaintiff's shipping agent was not a transportation company. However, I find the case distinguishable as there the agent appears to have lacked authority to sign bills of lading. The only connection between the agent and the owner was said to be that the agent prepared a custom's declaration for the owner and forwarded advice from Canadian immigration authorities to the owner. As well, there is no indication from the reasons that the decision of the Court of Appeal in the Flota Cubana case was cited to the prothonotary. |
| [81] While it is true that Greer's role was narrowly circumscribed in that Greer sought instructions from Brokerage in respect of the services provided to the vessel and could not negotiate the wording of bills of lading, I conclude that it was not unreasonable for the Minister to determine that the central criteria of an agency relationship were satisfied in the present case. |
| (iv) Was there any breach of procedural fairness due to delay and lack of disclosure? |
| [82] In arguing this point, Greer first asserted that it was denied any opportunity to participate in the decision-making process, and that there was not proper disclosure as to who made the decision, what was considered, and what the basis for the decision was. This was said to amount to a flawed process, contrary to the general duty of procedural fairness. Reliance was placed upon the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (S.C.C.). Second, Greer asserted that there had been undue delay to the extent of breaching the duty of fairness. Reliance was placed upon Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (T.D.). |
| [83] On September 9, 1992, CIC wrote to Greer setting out the fact of Mr. Nizam's desertion of July 27, 1992 and stating: |
| Please be advised that the Immigration Act holds the transportation company liable for detention and deportation costs (Immigration Act 87(3)) and we, therefore, are asking for a deposit of five thousand dollars ($5,000.00) under the authority of Section 93 of the Immigration Act. |
| We would appreciate your prompt attention to this matter. |
| Greer made no response to that letter. |
| [85] Thereafter, on February 6, 1998, two days after Mr. Nizam's arrest and apprehension, CIC advised Greer by fax of Mr. Nizam's scheduled removal and advised of the estimated removal costs. Greer was asked to call if it had any questions. Greer advised that CIC could proceed with the removal and that Greer would not be making arrangements to convey Mr. Nizam. |
| [86] On March 6, 1998, CIC submitted to Greer a "Record of Transportation Company Liability" which named Greer as the transportation company and showed total expenses of $10,000.09. There is no evidence of any response from Greer. |
| [87] Monthly statements to Greer followed, with no response. |
| [88] On December 31, 1998, CIC advised Greer that it would take steps to recover the debt. |
| [89] In view of Greer's own inaction, I can find no breach of procedural fairness. In September of 1992 Greer was put on notice that CIC would be looking to it for payment of removal costs. Greer could have taken issue with that at the time. Thereafter any delay resulted from Mr. Nizam's actions and the inability to calculate removal costs prior to the actual removal. Greer could have again objected to the respondent's position or made submissions following receipt of the fax in February of 1998. In those circumstances, I cannot conclude that the delay, or the process followed, constituted any breach of the duty of procedural fairness. |
| (v) Were the monies said to be owing by Greer properly set off? |
| [90] Supplementary written submissions dealing with this issue were filed by both parties after the hearing of the oral argument. Attached to the Minister's submissions were a "Minister's Delegation Document" signed by the Minister and an "Acceptance of Financial Authorities" document. Greer objected to the admission of these documents on the ground that they should have been introduced by way of proper affidavit evidence, thus providing an opportunity for cross-examination. |
| [91] I agree. This issue was clearly raised by Greer in its materials and all required evidence should have been produced in accordance with all of the requirements of the rules of the Court. I have therefore not relied upon those documents. |
| [92] The set-off was justified by the Minister on the basis of section 155 of the Financial Administration Act, R.S.C. 1985, c. F-11 which provides: |
| 155. (1) Where any person is indebted to
(a) Her Majesty in right of Canada, or
(b) Her Majesty in right of a province on account of taxes payable to any province, and an agreement exists between Canada and the province whereby Canada is authorized to collect the tax on behalf of the province,
the appropriate Minister responsible for the recovery or collection of the amount of the indebtedness may authorize the retention of the amount of the indebtedness by way of deduction from or set-off against any sum of money that may be due or payable by Her Majesty in right of Canada to the person or the estate of that person.
155(2) Payments in respect of which Canada has contributed
(2) Where, in the opinion of the Minister of Finance,
(a) any person is indebted to a province by reason of having received from the province a payment, in respect of which Canada has contributed under any Act, to which that person was not entitled, and
(b) the province has made reasonable efforts to effect recovery of the amount of such indebtedness,
the Minister may require the retention of the amount of the indebtedness by way of deduction from or set-off against any sum of money that may be due and payable by Her Majesty in right of Canada to that person, and the amount so deducted, less the portion thereof that in the opinion of the Minister is proportionate to the contribution in respect thereof made by Canada, may be paid to the province out of the Consolidated Revenue Fund.
155(3) Recovery of over-payment
(3) The Receiver General may recover any over-payment made out of the Consolidated Revenue Fund on account of salary, wages, pay or pay and allowances out of any sum of money that may be due or payable by Her Majesty in right of Canada to the person to whom the over-payment was made.
155(4) Consent of other Minister
(4) No amount may be retained under subsection (1) without the consent of the appropriate Minister under whose responsibility the payment of the sum of money due or payable referred to in that subsection would but for that subsection be made.
|
|
| 155. (1) Le ministre compétent responsable du recouvrement d'une créance soit de Sa Majesté du chef du Canada, soit de Sa Majesté du chef d'une province s'il s'agit d'impôts provinciaux visés par une entente entre le Canada et la province en vertu de laquelle le Canada est autorisé à percevoir les impôts pour le compte de la province, peut autoriser, par voie de déduction ou de compensation, la retenue d'un montant égal à la créance sur toute somme due au débiteur ou à ses héritiers par Sa Majesté du chef du Canada.
155(2) Paiements auxquels le Canada a contribué
(2) Le ministre, s'il estime qu'une personne est débitrice d'une province pour avoir reçu de celle-ci, sans y avoir droit, un paiement auquel le Canada a contribué en conformité avec une loi et que la province a fait des efforts raisonnables en vue de recouvrer cette créance, peut exiger la retenue, par voie de déduction ou de compensation, d'un montant égal à la créance sur toute somme due à cette personne par Sa Majesté du chef du Canada; le montant ainsi déduit, moins la partie de ce dernier qui, selon le ministre, est proportionnelle à la contribution que le Canada a faite à cet égard, peut être versé à la province sur le Trésor.
155(3) Recouvrement
(3) Le receveur général peut recouvrer les paiements en trop faits sur le Trésor à une personne à titre de salaire, de traitements ou d'allocations en retenant un montant égal sur toute somme due à cette personne par Sa Majesté du chef du Canada.
155(4) Assentiment du ministre compétent
(4) La retenue d'argent prévue par le paragraphe (1) ne peut être effectuée sans l'assentiment du ministre compétent responsable, en l'absence de ce paragraphe, du paiement de la somme en cause.
|
|
| [93] Greer objected arguing that while the Minister of Citizenship and Immigration was required to have authorized the set-off there was no evidence that the Minister had any involvement in the decision. The declaration in support of the application for a set-off was signed by André Couture, Director, Accounting Operations, Citizenship and Immigration Canada. |
| [94] In response, the Minister relied upon paragraph 24(2)(d) of the Interpretation Act, R.S.C. 1985, c. I-21, as amended by S.C. 1992, c. 1, s. 89. That paragraph is as follows: |
| 24(2) Words directing or empowering a minister of the Crown to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include
(a) a minister acting for that minister or, if the office is vacant, a minister designated to act in the office by or under the authority of an order in council;
(b) the successors of that minister in the office;
(c) his or their deputy; and
(d) notwithstanding paragraph (c), a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing, or to the words so applying.
|
|
| 24(2) La mention d'un ministre par son titre ou dans le cadre de ses attributions, que celles-ci soient d'ordre administratif, législatif ou judiciaire, vaut mention_:
a) de tout ministre agissant en son nom ou, en cas de vacance de la charge, du ministre investi de sa charge en application d'un décret;
b) de ses successeurs à la charge;
c) de son délégué ou de celui des personnes visées aux alinéas a) et b);
d) indépendamment de l'alinéa c), de toute personne ayant, dans le ministère ou département d'État en cause, la compétence voulue.
|
|
| [95] While the applicability of this provision may be ousted by specific legislation, or by necessary implication, I find nothing in the Act or the Financial Administration Act, to oust the application of this provision. Indeed subsection 121(1) of the Act authorizes the Minister, subject to some exceptions not applicable to the present case, to authorize such persons employed in the Public Service of Canada as the Minister deems proper to exercise any of the powers that may be or are required to be exercised or performed by the Minister, and subsection 121(2) provides that any power exercised under subsection 121(1) by any person authorized to exercise it shall be deemed to have been exercised or performed by the Minister. |
| [96] As Strayer, J., as he then was, noted in Vidal v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 123 (F.C.T.D.) at page 142: |
| ... [I]t is inconceivable that parliament intended the Governor in Council to focus on each [humanitarian and compassionate grounds] application. An extensive delegation system must be implied. |
| [97] I similarly find that in the present case the Minister was not required to be personally involved in the decision to set off the sum of $10,640.56. |
| [98] For all of these reasons, the application for judicial review in IMM-2639-99 will be dismissed. |
| [99] Respondent's counsel has ten (10) days from the receipt of these reasons to serve and file submissions with respect to the issues of costs and certification of a question. Thereafter counsel for the applicant will have ten (10) days to serve and file submissions on those issues. Respondent's counsel will then have four (4) days to serve and file any reply submissions. |
| [100] Following consideration of any submissions by the Court, judgment will issue dismissing this application for judicial review. |
| _______________________________________ |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NOS: IMM-2639-99, IMM-3997-99, IMM-3998-99 |
| STYLE OF CAUSE: GREER SHIPPING LTD. |
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| COLLEY MOTORSHIPS WEST LTD. |
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AND BETWEEN:
COLLEY MOTORSHIPS WEST LTD.
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: TUESDAY, AUGUST 1, 2000 |
| PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA |
| REASONS FOR JUDGMENT BY: DAWSON J. |
DATED: MONDAY, JANUARY 29, 2001
| APPEARANCES BY: Mr. H. Peter Swanson |
| SOLICITORS OF RECORD: CAMPNEY & MURPHY |
Lawyers
2100-1111 West Georgia Street
Vancouver, B.C. V7X 1K9
Tel. No.: 604-688-8022
Fax No. 604-688-0829
Vancouver Regional Office
900 - 840 Howe Street
Vancouver, B.C.
V6Z 2S9
FEDERAL COURT OF CANADA
Date: 20010129
Docket: IMM-2639-99
Between:
GREER SHIPPING LTD.
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: IMM-3997-99
And between:
COLLEY MOTORSHIPS WEST LTD.
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: IMM-3998-99
And between:
COLLEY MOTORSHIPS WEST LTD.
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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