Date: 20060419
Docket: T-1214-05
Citation: 2006
FC 497
Ottawa, Ontario,
the 19th day of
April 2006
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
GAÉTAN
HOULE
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review filed pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F‑7, of a decision on June 21,
2005 by an Appeal Board (the Board) formed pursuant to section 73 of the Crewing
Regulations, SOR 97‑390 (the Regulations), declaring the respondent
fit for service at sea and issuing a medical certificate to him to this effect,
with the following restrictions:
(a) the
respondent is able to perform the functions of watch officer on a “local
voyage” (as defined in the Regulations);
(b) the
respondent must continue to take his medication;
(c) the
respondent must continue to be followed up every four months by his
specialist physician.
ISSUES
(a) Did
the Board err in its interpretation of subsection 63.1(2) of the
Regulations?
(b) Did
the Board err in concluding that the respondent was suffering from [TRANSLATION] “few symptoms” of paranoid
schizophrenia?
[3]
For the
following reasons, the answers to these questions are in the negative and the
application for judicial review will be dismissed.
FACTUAL BACKGROUND
[4]
The
respondent Gaétan Houle is a seafarer. In 1995, he obtained his long-distance
master mariner’s certificate.
[5]
The
respondent suffers from paranoid schizophrenia, a chronic illness. In 1992, he
was kept for two months at the Hôtel-Dieu de Montmagny because of acute
paranoid disorders.
[6]
The
respondent takes medication daily to suppress or minimize the symptoms of his
illness. Except for a two-week interruption in 1994, during which his symptoms
reappeared, the respondent has been taking his medication regularly.
[7]
Since
1995, the respondent has been followed by a psychiatrist, Dr. Claude
Girard. His clinical condition is stable and he has had few symptoms since
then. Between 1995 and 1999, he held several officer positions on ships,
apparently without incident.
[8]
On
March 11, 2002, Dr. Blanchet, a designated physician, issued a
medical certificate in which he referred to someone else the task of making a
decision as to the respondent’s ability to navigate.
[9]
On
June 20, 2002, Dr. François Dubé, senior marine consultant at the
Ottawa Marine Medical Certification Section, issued a medical certificate
declaring the respondent unfit for service at sea.
[10]
On
September 19, 2002, the respondent sought a review of his case pursuant to
section 72 of the Regulations.
[11]
A review
took place on March 21, 2005. The respondent met with Dr. Yvan
Gauthier, who confirmed Dr. François Dubé’s appraisal and issued a medical
certificate declaring the respondent unfit for service at sea.
[12]
At the
respondent’s request, the Board was created to hear the appeal from
Dr. Yvan Gauthier’s decision.
[13]
The
hearing took place on May 27, 2005, and the Board allowed the respondent’s
appeal on June 21, 2005.
IMPUGNED DECISION
[14]
The Board
held that the respondent did not have a disability due to an active psychiatric
disorder within the meaning of paragraph 63.1(2)(e) of the
Regulations making him completely incapable of or unfit for service at sea.
[translation]
The Board is of the view that the “active
psychiatric disorder” mentioned in paragraph (e) of subsection (2)
cannot be viewed in isolation. The subsection has to be looked at as a whole
and each of the disorders, problems and deficiencies mentioned in the
paragraphs must be read in conjunction with the statement in the introductory
subsection referring to disabilities. Therefore, the disorder must be such as
to make a person to some extent incapable of performing his duties or carrying
out his functions or responsibilities.
WHEREAS the evidence has shown that:
Mr. Houle is suffering from a
chronic treated psychiatric disorder, controlled by medication and not
developing;
Since his hospitalization in 1992, he has
not suffered any acute phase and his clinical condition is stable;
Mr. Houle performed the duties of
watch officer from 1995 to 1999 on various ships without significant incident;
This leads the BOARD to HOLD that
Mr. Houle has no disability due to an active psychiatric disorder which
makes him completely incapable of or unfit for performing his duties.
However, IN VIEW OF the chronic
nature of the illness from which he suffers and the very broad scope of the
certificate held by Mr. Houle, the BOARD CONSIDERS that the
imposition of certain conditions is necessary.
ACCORDINGLY, the Board declares him fit, subject to
restrictions.
AND THEREFORE issues him a marine medical certificate
dated June 21, 2005, containing the restrictions indicated below:
1. Able
to perform the functions of watch officer on a “local voyage” (as defined in
the Regulations);
2. Must continue to take his
medication;
3. Must continue to be
followed up every four months by his specialist physician.
ANALYSIS
[16]
The
relevant provisions of the Regulations are the following:
|
63.
No person shall employ a person as a seafarer to whom this Division applies
unless the person produces a valid medical certificate issued under this
Division, attesting to the person’s fitness
|
63.
Il est interdit d’employer une personne à titre de navigant à qui s’applique
la présente section à moins qu’elle ne présente un certificat médical valide
délivré en vertu de la présente section, qui atteste de son aptitude :
|
|
(a)
to perform the duties for which the person is to be employed; and
|
a) d’une part, à effectuer le
travail pour lequel elle doit être employée;
|
|
(b)
to make the voyage to be engaged in by the ship.
|
b) d’autre part, à effectuer le voyage que le navire doit
entreprendre.
|
|
63.1 (1) A seafarer who meets the
requirements of this section may obtain a medical certificate.
|
63.1 (1) Tout navigant peut obtenir un
certificat médical s’il satisfait aux exigences du présent article.
|
|
(2)
The seafarer shall not have any of the following disabilities:
|
(2)
Le navigant peut obtenir un certificat médical s’il n’est atteint d’aucune
des incapacités suivantes :
|
|
(a)
an impairment that could cause an unpredictable loss of consciousness and is
not controlled through medication or otherwise;
|
a) une déficience qui
pourrait causer une perte de conscience imprévisible et qui n’est pas
contrôlée à l’aide de médicaments ou d’une autre façon;
|
|
(b)
a disorder that could prevent the seafarer from reacting effectively while
performing duties;
|
b) des troubles de nature à
l’empêcher de réagir efficacement dans l’exercice de ses fonctions;
|
|
(c)
a condition that could endanger others, taking into account the duration of
voyages and the conditions on board ship;
|
c) un problème de santé de
nature à poser un risque pour les autres personnes, compte tenu de la durée
des voyages et des conditions à bord du navire;
|
|
(d)
a condition that is likely to require emergency medical care and is not
controlled through medication or otherwise; or
|
d) un problème de santé qui
risque de nécessiter des soins médicaux urgents et qui n’est pas contrôlé à
l’aide de médicaments ou d’une autre façon;
|
|
(e)
an active psychiatric disorder, including drug or alcohol dependence or
abuse.
|
e) un trouble psychiatrique
actif, notamment une dépendance à l’égard de la drogue ou de l’alcool ou
l’abus de l’un ou de l’autre.
|
1. Did the Board err
in its interpretation of subsection 63.1(2) of the Regulations?
[18]
As the
illness from which the respondent is suffering is chronic, the applicant argued
that the Board erred in interpreting the term “active psychiatric disorder” as
meaning that [translation] “the
disorder must be such as to make a person to some extent incapable of
performing his duties or carrying out his functions or responsibilities”.
[19]
Interpretation
of the terms of a legislative provision is a question of law, subject on
judicial review to the correctness standard (Dr. Q v. College of
Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R.
982).
[20]
In Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27,
Mr. Justice Iacobucci wrote at paragraphs 21 and 22:
Although much has been written about the
interpretation of legislation (see, e.g., Ruth Sullivan, Statutory
Interpretation (1997); Elmer Driedger, Driedger on the Construction of
Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”);
Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed.
1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best
encapsulates the approach upon which I prefer to rely. He recognizes that
statutory interpretation cannot be founded on the wording of the legislation
alone. At p. 87 he states:
Today there is only one principle or
approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above
passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R.
213; Royal Bank of Canada v. Sparrow Electric Corp., [1997]
1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R.
550; Friesen v. Canada, [1995] 3 S.C.R. 103.
[21]
Now,
applying this method of statutory construction, I am not of the view that the
Board erred in its interpretation of paragraph 63.1(2)(e) of the
Regulations. The word “active” indicates that Parliament did not intend to
exclude every person suffering from a psychiatric disorder from service at sea.
[22]
A good
example is that of alcohol dependency or drug addiction, which can also be
chronic conditions and are expressly referred to in this provision. It would
seem troubling to say the least if a person suffering from alcohol dependency
who had stopped drinking for over ten years could not be granted a certificate
of fitness for service at sea provided the person did not consume alcohol. The
same applies to the condition from which the applicant suffers, which is not an
“active disorder” so long as he takes his medication regularly.
[23]
Therefore,
I conclude from this that the Board made no error in interpreting the phrase
“active psychiatric disorder” as meaning that [translation] “the disorder must be such as to make a person
to some extent incapable of performing his duties or carrying out his functions
and responsibilities”. That interpretation is consistent with the overall
context of the Regulations and does not conflict with the wording of
paragraph 63.1(2)(e) or the intention of Parliament.
2. Did the Board err in
concluding that the respondent was suffering from “few symptoms” of paranoid
schizophrenia?
[24]
The
applicant alleged that the Board erred in concluding that the respondent was
only suffering from “few symptoms” of paranoid schizophrenia. He contended
that the symptoms exhibited by the respondent were considerable and that even
if this Court ruled that the interpretation by the Board of
paragraph 63.1(2)(e) of the Regulations is correct, the psychiatric
disorder from which the respondent is suffering is so severe as to make him
unfit for service at sea.
[25]
To
determine the standard of review applicable to this ruling by the Board, we
must make the pragmatic and functional analysis recommended by
McLachlin C.J. in Dr. Q, supra, at paragraph 26:
In the pragmatic and functional approach, the standard of review is
determined by considering four contextual factors – the presence or absence of
a privative clause or statutory right of appeal; the expertise of the tribunal
relative to that of the reviewing court on the issue in question; the purposes
of the legislation and the provision in particular; and the nature of the
question – law, fact or mixed law and fact. The factors may overlap. The
overall aim is to discern legislative intent, keeping in mind the
constitutional role of the courts in maintaining the rule of law. I find the
approach taken in the courts below problematic. As a result, I believe it will
be helpful to re‑articulate the focus of the factors involved and update
the considerations relevant to each. Before doing this, I must emphasize that
consideration of the four factors should enable the reviewing judge to address
the core issues in determining the degree of deference. It should not be
viewed as an empty ritual, or applied mechanically. The virtue of the
pragmatic and functional approach lies in its capacity to draw out the
information that may be relevant to the issue of curial deference.
[26]
In this
case, the pragmatic and functional approach leads the Court to conclude that
the applicable standard of review is that of reasonableness simpliciter.
This conclusion is based on the following four factors:
(a) the Regulations contain no
privative clause and do not provide for any right of appeal;
(b) we note among the members of
the Board the presence of Drs. Laurent Marcoux and François Piché, and the
Board was assisted in its deliberations by Dr. Guy Croisetière: it seems
clear to the Court that the medical expertise available to the Board in
assessing the respondent’s symptoms favours a measure of restraint in
considering its findings on judicial review;
(c) the purpose of section 73
of the Regulations is to enable the Board to determine the fitness for service
at sea of a person challenging a medical certificate declaring him or her
unfit: it is more a provision seeking to resolve a pure lis inter partes
than one for balancing contradictory policy objectives (Dr. Q, supra,
at paragraph 32); the Board’s finding here applies only to the respondent,
and this favours a low degree of deference on judicial review;
(d) the finding challenged by the
applicant derives from an issue of fact, which justifies quite a high degree of
deference.
[27]
Accordingly,
the pragmatic and functional analysis leads this Court to conclude that the
appropriate standard of review is that of reasonableness simpliciter.
Therefore, this Court must ask whether it was unreasonable for the Board to
conclude that the respondent exhibited [translation] “few
symptoms” of paranoid schizophrenia.
[29]
In
addition, it should be noted that the respondent has been taking his medication
regularly since 1994 and that the medical certificate granted by the Board
imposes very specific restrictions on him.
[30]
In view of
all those factors, I find that the Board’s conclusion was not unreasonable.
[31]
As to the
question of costs, the applicant stated that these would be waived in the event
of a successful outcome and asked that if the application for judicial review was
dismissed it should also be without costs. The respondent, for his part,
accepted the applicant’s proposal if the latter was successful, but if the
application was dismissed asked to be awarded his costs. As the respondent has
been successful, I see no special circumstances justifying a departure from the
rule that the losing party must pay costs.
JUDGMENT
THE COURT ORDERS that the application for
judicial review be dismissed with costs.
“Michel
Beaudry”
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