Reed,
J.:—This
is
an
application
by
the
plaintiff
for
a
declaration,
a
writ
of
certiorari,
or
a
mandatory
injunction.
The
claim
results
from
the
seizure
of
the
plaintiff’s
vessel
“Fort
Good
Hope"
pursuant
to
the
Customs
Act,
R.S.C.
1970,
c.
C-40,
as
amended.
The
defendants
seized
the
vessel
for
alleged
non-payment
of
customs
duties.
The
plaintiff
seeks
a
declaration
that
it
is
not
liable
for
the
duties
in
question,
a
writ
of
certiorari,
quashing
the
Minister’s
decision
pursuant
to
section
163
of
the
Customs
Act
that
such
duties
are
owed,
and
a
mandatory
injunction
requiring
the
defendants
to
release
the
plaintiff's
ship
either
absolutely
(on
the
same
grounds
as
those
on
which
a
declaration
or
certiorari
are
sought)
or
conditionally
(on
payment
by
the
plaintiff
of
the
duties
apportioned
for
the
1984-1985
years,
plus
security
for
1986
and
an
undertaking
to
deliver
the
ship
back
to
the
custody
of
the
defendants
at
the
end
of
the
1986
season).
The
ship
in
question
is
used
in
connection
with
the
offshore
drilling
activity
in
the
Beaufort
Sea.
The
season
within
which
it
can
operate
is
short
—
the
beginning
of
July
to
the
end
of
September.
All
three
remedies
sought
are
based
on
the
same
argument,
that
the
plaintiff
is
not
liable
for
the
duties
claimed
by
the
defendants.
The
"Fort
Good
Hope"
was
constructed
in
the
United
Kingdom
pursuant
to
an
order
placed
June
1,
1982.
It
was
delivered
to
the
plaintiff
and
arrived
in
Vancouver
on
March
31,
1984.
As
of
June
30,
1983
the
Canadian
customs
laws
were
extended,
to
apply
on
the
continental
shelf
and
within
two
hundred
miles
of
the
shore
line:
Customs
and
Excise
Offshore
Application
Act,
S.C.
1984,
c.
17.
That
Act
uses
the
term
"continental
shelf
of
Canada”
to
describe
the
area
to
which
the
extension
applies.
This
is
defined
in
section
(2)
as:
.
.
.
the
seabed
and
subsoil
of
those
submarine
areas
that
extend
beyond
the
territorial
sea
of
Canada
throughout
the
natural
prolongation
of
the
land
territory
of
Canada
to
the
outer
edge
of
the
continental
margin
or
to
a
distance
of
two
hundred
nautical
miles
from
the
inner
limits
of
the
territorial
sea
of
Canada,
whichever
is
the
greater,
or
that
extend
to
such
other
limits
as
are
prescribed
pursuant
to
subsection
(3);
[Emphasis
added.]
The
territorial
sea
can
be
thought
of
as
the
area
between
the
shore
and
a
distance
12
miles
seaward
from
thence.
The
“continental
shelf”
described
above
commences
seaward
from
the
outer
edge
of
the
territorial
sea.
For
convenience,
for
the
purposes
of
these
reasons,
I
will
refer
to
the
area
described
in
the
definition
as
the
“continental
shelf”
set
out
above
as
“the
offshore"".
Subsection
6(1)
of
the
Customs
and
Excise
Offshore
Application
Act
allows
an
exemption
from
duty
imposed
by
the
Act
for:
.
..
goods
for
use
as
designated
goods
that
are
brought
within
the
limits
of
the
continental
shelf
of
Canada
after
the
coming
into
force
of
this
Act
pursuant
to
a
written
contract
entered
into
prior
to
January
6,
1983,
when
the
goods
are
used
or
consumed
within
the
limits
of
the
continental
shelf
of
Canada.
[Emphasis
added.]
“Designated
goods""
are
defined
in
section
2
as:
(a)
artificial
islands,
ships,
vessels,
installations,
structures
or
apparatus,
including
drilling
rigs,
drilling
ships,
production
platforms,
storage
vessels,
storage
tanks,
docks,
caissons
and
pipelines,
permanently
or
temporarily
attached
to
or
resting
on
the
continental
shelf
of
Canada
for
the
exploration,
development,
production
or
transportation
of
the
mineral
or
other
non-living
natural
resources
thereof,
(b)
ships,
vessels,
equipment,
apparatus,
structures
or
conveyances
used
for
the
construction,
erection
or
servicing
of
any
artificial
island,
ship,
vessel,
installation,
structure
or
apparatus
referred
to
in
paragraph
(a)
or
for
the
transportation
of
goods
between
any
such
thing
and
a
point
in
Canada
or
between
any
such
things.
[Emphasis
added.]
The
“Fort
Good
Hope""
is
a
ship
brought
within
the
offshore
after
the
coming
into
force
of
the
Customs
and
Excise
Offshore
Application
Act
and
it
was
purchased
pursuant
to
a
contract
entered
into
prior
to
January
6,
1983.
It
was
granted
a
conditional
exemption
pursuant
to
subsection
6(1)
of
the
Act
from
duties
and
taxes
payable.
The
covering
letter
sent
with
the
certificate
of
exemption
stated:
This
exemption
is
conditional
on
the
vessel
being
used
for
the
exploration,
development,
production
or
transportation
of
the
mineral
or
other
non-living
natural
resources
beyond
the
territorial
sea
of
Canada
but
within
the
limits
of
the
continental
shelf
of
Canada.
In
the
event
you
decide
to
use
the
FORT
GOOD
HOPE
within
the
internal
waters
of
Canada
or
the
territorial
sea
of
Canada,
it
will
immediately
become
subject
to
the
Customs
Tariff.
The
defendants
allege
more
than
40
violations
of
these
conditions
by
the
“Fort
Good
Hope""
occurred
between
July
1984
and
September
1985.
Duties
and
taxes
were,
therefore,
assessed.
While
the
original
duties
and
penalties
assessed
were
$89,972.35
($64,972.35
by
way
of
duty
and
$25,000
by
way
of
penalties),
the
Minister’s
decision
under
section
163
of
the
Act,
given
June
13,
1986,
assesses
an
amount
of
$53,202.
The
alleged
violations
consist
in
the
moving
of
goods
or
people
between
points
in
Canada
within
the
territorial
sea
and
internal
waters.
For
convenience
I
will
refer
to
this,
from
time
to
time,
as
“point
to
point""
activity.
An
example
of
such
activity
is
the
carrying
of
supplies
from
shore
(Tuktoyaktuk)
to
the
rig
Molikpaq
while
it
was
anchored
at
Herschell
Island
before
towing
the
rig
to
its
operational
location
outside
the
territorial
sea.
Another
example
is
the
towing
of
rigs
from
one
place
to
another
place
within
Canada
(e.g.
Vancouver
to
Herschell
Island).
The
alleged
violations
were
identified
by
the
defendants
from
an
examination
of
the
ship's
log
book.
In
an
affidavit
before
me,
filed
for
the
purposes
of
this
hearing,
the
Master
of
the
ship
describes
in
some
detail
each
of
the
alleged
violations
and
the
purpose
of
each,
respectively.
The
plaintiff’s
argument
is
that
the
text
of
the
Customs
and
Excise
Offshore
Application
Act
was
meant
to
allow
exempt
vessels
to
engage
in
the
kind
of
activities
undertaken
by
the
“Fort
Good
Hope”.
That
is,
it
is
argued
that
the
exemption
includes
the
right
to
operate
between
points
in
Canada
when
that
operation
is
connected
to
the
activities
of
the
offshore
drilling
rigs.
Counsel
argues
that
it
is
illogical
to
exempt
the
“Fort
Good
Hope”
from
duties
when
it
carries
goods
from
the
shore
to
a
rig
anchored
offshore,
but
to
require
duties
to
be
paid
if
the
ship
loads
supplies
into
the
rig,
when
it
is
marshalled
off
Herschell
Island,
and
then
tows
that
rig
to
its
operational
site
outside
the
territorial
sea.
The
plaintiffs
arguments
are
of
two
types:
(1)
the
interpretation
of
the
text
of
the
statute
and
(2)
the
appropriate
characterization
of
the
activity
carried
on
by
the
“Fort
Good
Hope”.
Counsel's
first
argument
is
that
subsection
6(1)
must
have
intended
to
allow
exemption
to
extend
to
“point
to
point”
activity.
This
is
based
on
an
interpretation
of
the
limiting
condition
in
that
subsection
which
reads:
“when
the
goods
are
used
.
.
.
within
the
limits
of
the
continental
shelf”.
It
is
argued
that
while
generally
in
the
Act*
“within
the
limits
of
the
continental
shelf’’
means
that
area
off
the
coast
beyond
the
territorial
sea
(what
I
have
labelled
“the
offshore”),
it
cannot
carry
this
meaning
with
respect
to
activities
carried
on
by
the
“Fort
Good
Hope”.
This
follows,
it
is
said,
because
exempt
ships
are
clearly
intended
to
be
able
to
take
goods
from
shore
to
a
rig
anchored
on
the
shelf.
Therefore,
the
exempt
ship
must,
necessarily,
be
used
within
the
territorial
sea
and
internal
waters
of
Canada.
Thus,
it
is
argued,
“within
the
limits
of
the
continental
shelf”
in
subsection
6(1)
must
clearly
include
the
territorial
sea
and
internal
waters.
While
at
first
glance
this
argument
appears
attractive,
I
think
it
is
easy
to
rebut.
One
response
to
it
is
that,
when
used
within
the
territorial
sea
or
internal
waters,
the
ships
in
question
are
indeed
subject
to
duty,
but
such
has
been
waived
by
the
Crown.
A
second
response
would
be
that
the
particular
clause
of
subsection
6(1)
must
be
interpreted
by
implication,!
to
include
an
exemption
from
duties
when
moving
through
the
territorial
seas
or
inland
waters
to
transport
goods
between
the
offshore
rigs
and
shore.
But,
no
wider
exemption
would
be
imported
by
implication
than
was
strictly
necessary
to
accommodate
that
activity.
In
any
event,
I
do
not
purport
to
decide
this
issue
within
the
context
of
the
present
limited
arguments
presented
thereon
for
the
purposes
of
this
motion.
The
plaintiff’s
second
argument
is
that
even
if
subsection
6(1)
does
not
apply,
duty
is
not
owed
because
subsection
10(1)
of
the
Customs
and
Excise
Offshore
Application
Act
provides:
Canadian
ships,
the
product
of
a
country
entitled
to
benefits
of
the
British
Preferential
Tariff
or
the
product
of
the
United
Kingdom
of
Great
Britain
.
.
.
ordered
pursuant
to
a
written
contract
entered
into
prior
to
January
6,
1983
for
the
purpose
of
engaging
in
the
coasting
trade
of
Canada
pursuant
to
Part
XV
of
the
Canada
Shipping
Act,
shall
be
deemed
to
be
duty
and
tax
paid
ships
under
federal
customs
laws.
[Emphasis
added.]
Apparently
there
is
no
definition
in
the
Customs
Act
of
the
term
“coasting
trade”,
although
I
note
that
section
287
allows
for
its
definition
by
order
in
council.
Nevertheless
a
definition
is
found
in
the
Canada
Shipping
Act,
R.S.C.
1970,
c.
S-9,
s-2,
a
statute
in
pari
materia
with
the
Customs
Act:
Coasting
trade
of
Canada
includes
the
carriage
by
water
of
goods
or
passengers
from
one
port
or
place
in
Canada
to
another
port
or
place
in
Canada.
The
parties
agree
that
only
one
condition
of
subsection
10(1)
of
the
Customs
and
Excise
Offshore
Application
Act
is
in
dispute.
All
others
are
clearly
met
by
the
plaintiff’s
vessel.
The
condition
in
dispute
is
that
which
requires
the
ship
to
have
been
“ordered
...
for
the
purpose
of
engaging
in
the
coasting
trade
of
Canada”.
The
defendants’
argument
is
that
the
“Fort
Good
Hope”
was
not
ordered
for
this
purpose.
This
factual
conclusion
drawn
by
the
defendants
is
based
on
paragraph
3
of
the
plaintiff’s
statement
of
claim,
which
states,
in
part:
..
The
“Fort
Good
Hope”
was
ordered
for
use
by
the
plaintiff
in
the
Arctic
Ocean
for
the
construction,
erection,
and
servicing
of
ships,
vessels,
installations,
structures
and
apparatus
on
the
Continental
Shelf
of
Canada
.
.
.
and
for
the
transportation
of
goods
between
such
things
and
points
in
Canada,
and
uses
ancillary
thereto
including
the
transport
of
goods
and
persons
between
points
in
Canada.
[Emphasis
added.]
Reference
is
also
made
to
an
affidavit
filed
by
Mr.
Fryatt
dated
May
27,
1986.
In
paragraph
5
it
refers
to
the
“Fort
Good
Hope”
as:
an
Ice
Class
One
anchor
handling
tug
supply
vessel,
with
ice
breaking
capabilities,
designed
for
use
in
northern
waters
for
transportation
of
barges
and
handling
of
anchors
of
offshore
drilling
platforms.
There
are
obviously
significant
issues
of
fact
and
law
raised
by
the
plaintiff’s
arguments
which
it
is
not
possible
to
resolve
on
the
basis
of
the
affidavit
evidence
filed.
A
host
of
questions
come
to
mind:
whether
the
intention
of
the
purchaser
at
the
time
of
purchase
is
the
crucial
factor
in
determining
the
application
of
subsection
10(1);
whether
the
physical
nature
of
the
boat
and
how
it
compares
to
“coastal
trading
boats’’,
to
coin
a
phrase
is
relevant
to
this
determination;
why
if
a
ship
were
ordered
for
and
engaged
solely
in
the
coastal
trading
or
solely
in
offshore
work,
it
is
exempt,
but
if
a
combination
of
the
two
types
of
activity
occurs,
the
vessel
is
in
a
less
favourable
position;
what
treatment
is
accorded
to
vessels
that
engage
in
the
coasting
trade
and
some
other
activities
(if
such
exist)?
In
any
event,
as
noted
these
are
not
issues
which
are
capable
of
resolution
on
the
basis
of
the
material
filed.
It
is
necessary
then,
within
this
context,
to
consider
the
plaintiff’s
claims
for
relief.
I
shall
consider
first
the
application
for
a
declaration
or
a
writ
of
certiorari.
I
think
neither
of
these
remedies
are
appropriate.
With
respect
to
the
first,
I
need
do
no
more
than
cite
the
comments
of
Thurlow,
A.C.J.
in
Sankey
v.
Minister
of
Transport
and
Haskins,
[1979]
1
F.C.
134;
I
know
of
no
authority
or
rule
under
which
an
interim
declaration,
which
in
substance
would
accomplish
the
whole
purpose
of
the
action
without
a
trial
on
the
merits,
may
be
made.
If
a
case
for
a
declaration
were
shown
to
exist
or
to
be
fairly
arguable,
the
Court
might
perhaps
intervene
by
injunction,
in
an
appropriate
case,
to
hold
matters
in
status
quo
until
the
right
could
be
tried
but
that
is
by
no
means
the
same
thing
as
granting
an
interim
declaration
of
right.
The
likelihood
of
ultimate
entitlement
to
the
declaratory
relief
would
help
to
persuade
the
Court
to
issue
an
injunction
but
the
Court
would
do
so
without
determining
the
right
to
the
declaration
either
temporarily
or
at
all.
With
respect
to
a
claim
for
certiorari,
the
availability
of
alternate
remedies
is
always
a
factor
to
consider.
In
this
case
the
Customs
Act
provides
for
a
procedure
by
which
goods
are
seized
if
duties
owing
have
not
been
paid;
such
action
is
reported
to
the
Deputy
Minister
(section
160);
the
owner
is
notified
and
given
the
opportunity
to
make
representations
(section
161);
within
30
days
the
Deputy
Minister
reports
to
the
Minister
(section
162);
the
Minister
therupon
makes
his
decision
as
to
the
terms
upon
which
the
item
seized
will
be
released
(section
163);
the
owner
may
then
give
notice
that
he
does
not
accept
that
decision
(section
164);
and,
the
Minister
may
thereupon
refer
the
matter
to
the
court
(section
165)
or
if
he
does
not,
the
owner
may
commence
suit
for
recovery
of
the
goods.
In
the
light
of
the
availability
of
a
judicial
determination
in
the
normal
way,
and
in
circumstances
where
there
are
significant
factual
issues
to
be
determined,
certiorari
is
not
an
appropriate
remedy.
What
then
of
the
claim
for
an
order
requesting
mandatory
release
of
the
vessel
on
terms?
It
first
of
all
must
be
noted
that
the
Minister
does
not
refuse
release
of
the
vessel.
He
is
willing
to
grant
release,
on
payment
by
the
plaintiff
of
the
$53,202
as
duties
and
penalties.
Thus
what
the
plaintiff
seeks
in
its
notice
of
motion
the
Minister
is
already
willing
to
grant.
It
was
apparent,
however,
from
the
argument
of
counsel
that
the
real
issue
between
the
parties
is
the
conduct
of
the
“Fort
Good
Hope”
during
the
coming
season.
Implicit
in
the
Minister's
offer
to
release
the
vessel
is
the
requirement
that
it
only
operate
between
locations
in
the
offshore
or
between
a
location
in
the
offshore
and
a
location
within
Canada.
The
plaintiff,
on
the
other
hand,
wants
release
of
the
vessel
free
of
that
condition.
The
plaintiff
is
willing
to
pay
the
$53,202
demanded
by
the
Minister.
It
is
willing
to
pay
an
additional
sum
as
an
estimate
of
what
might
be
payable
by
way
of
duties
and
penalties
for
the
1986
season.
It
is
also
willing
to
give
an
undertaking
to
redeliver
the
vessel
to
the
Minister
at
the
end
of
the
1986
season.
It
is
obvious
that
the
plaintiffs
concerns,
in
this
regard,
could
not
be
addressed
except
by
an
order
compelling
customs
officials
not
to
interfere
with
the
vessel
during
the
1986
season
should
it
engage
in
what
they
consider
to
be
activities
outside
the
exemption
granted.
This
is
not
a
remedy
sought
in
the
notice
of
motion.
It
is
really
a
variation
which
arose
out
of
the
course
of
argument.
It
is
not
an
argument
for
which
supporting
affidavit
material
was
filed.
For
example,
the
affidavit
filed
by
the
plaintiff
alleging
irreparable
harm
addresses
itself
to
the
consequences
that
would
result
if
the
vessel
were
not
allowed
to
operate
at
all.
It
does
not
address
itself
to
the
consequences
of
not
being
allowed
to
engage
in
the
disputed
activity.
In
the
circumstances,
I
think
it
would
be
inappropriate
for
me
to
consider
any
such
variation
of
the
remedies
formally
sought
in
the
notice
of
motion.
Accordingly,
for
the
reasons
given,
the
application
will
be
dismissed.
Application
dismissed.
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