Navigation Madeleine Inc. v. Canada (Attorney General), 2004 FC 54

                                                                                                                                            Date: 20040115

                                                                                                                                         Docket: T-275-03

Citation: 2004 FC 54

OTTAWA, ONTARIO, JANUARY 15, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

NAVIGATION MADELEINE INC.

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

and

LAURENTIAN PILOTAGE AUTHORITY

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]         The applicant Navigation Madeleine Inc. (the applicant) seeks a declaratory judgment against the Laurentian Pilotage Authority (L.P.A.), a federal board, to the effect that the vessel C.T.M.A. Vacancier (the vessel Vacancier), the applicant's property, is not subject to compulsory pilotage under the Pilotage Act, R.S.C., 1985, c. P-14 (the Act) and the Laurentian Pilotage Authority Regulations, C.R.C., c. 1268 (the Regulations). The applicant asks the Court to declare that the vessel Vacancier is a ferry and consequently exempted from the compulsory pilotage provisions under the Act and the Regulations.

FACTS

[2]         The applicant is a fully-owned subsidiary of the Coopérative de transport maritime & aérien (C.T.M.A.), a cooperative specializing in marine transportation. The applicant is the owner of the vessel Vacancier, a vessel registered in Canada.

[3]         The respondent L.P.A. is a federal board constituted, for purposes of navigation safety, to administer a pilotage service in the region assigned to it under the Act. The proceeding brought by the applicant named the Attorney General of Canada as a respondent. The L.P.A. requested intervener status; by a decision dated March 10, 2003, Prothonotary Morneau joined the L.P.A. as a respondent.

[4]         The issue is fairly straightforward. Under the Act, the L.P.A. is responsible for pilotage issues in the Canadian waters of the province of Quebec and is empowered under section 20 to establish compulsory pilotage areas in these waters and to prescribe the classes of ships that are subject to compulsory pilotage or the circumstances under which it may be waived.

[5]         The L.P.A. has established two compulsory pilotage areas covering the St. Lawrence River from the St. Lambert lock, at Montréal, to Les Escoumins on the North Shore. Ships above a certain tonnage and a certain length must have aboard, throughout this distance, two pilots who are licensed by or holders of a certificate issued by the L.P.A. The captains and ships' officers may obtain the L.P.A. licence or certificate by taking courses and writing examinations.

[6]         A vessel covered by the Regulations that navigates in the compulsory pilotage zone and that does not have crew members who are licensed pilots or holders of a pilotage certificate approved by the L.P.A. must so notify the Authority and take on board, for the duration of navigation in the area, pilots certified by the L.P.A. The Regulations exempt certain vessels, such as ferries, from the compulsory pilotage requirement.

[7]         The vessel Vacancier was repurchased from an Irish ferry corporation. It is a ship that carries both passengers and vehicles, and also includes cabins and restaurants. The vessel Vacancier travels from May to December between the Port of Montréal and Cap-aux-Meules in the Magdalen Islands, with stopovers at Québec and Matane.

[8]         The applicant argues that the Vacancier is a ferry; the L.P.A. states that it is a passenger cruise ship.

PARTIES' SUBMISSIONS

The applicant

[9]         The applicant cites the very language of the Regulations in support of its claim that the vessel Vacancier is a ferry. Under the Regulations, "any ferry operating in the passenger carrying trade on a regular schedule between two or more terminals" is not subject to compulsory pilotage. Since the vessel Vacancier carries passengers between more than one terminal, in return for payment, on a regular schedule, the applicant is of the opinion that it meets the description provided in the Regulations.

[10]       The route taken by the vessel Vacancier, according to the applicant, turns out to be the most direct route between the port of Cap-aux-Meules, Matane and Montréal. Moreover, it corresponds to the various definitions of "ferry" given by Parliament, which could be summarized as the carriage of passengers and cargo on a regular schedule.

The respondent

[11]       The L.P.A. argues that the ordinary meaning of the word "ferry" precludes any claim that the vessel Vacancier is a ferry. Instead, the Vacancier provides steamship services similar to those provided along the North Shore and the Lower North Shore, where a vessel does not cross a sea channel but rather services a number of ports in accordance with the cabotage, or coastal shipping, principle.

[12]       The respondent's main argument is one of maritime safety. The reason why pilotage is compulsory between Montréal and Les Escoumins is that the navigation channel is a difficult one, navigation is quite dense and ice is present during part of the year, in short, that the services of a licensed pilot or one holding an L.P.A. certificate are necessary.

[13]       In opposition to the applicant's submission that the vessel Vacancier provides a ferry service, the L.P.A. points to the advertising that is placed in a number of publications concerning the cruise from Montréal to the Magdalen Islands aboard the C.T.M.A. Vacancier. The operation of the Vacancier is profitable for tourist industry purposes and the advertising emphasizes this tourist cruise aspect.

EXPERTS' EVIDENCE

[14]       Experts on behalf of the two parties of course presented evidence to support their respective submissions. Here is a short summary of that evidence.

Applicant's expert, Jean Paul Turcotte

(1)         The vessel Vacancier meets an important need for an island community by ensuring the connection with terra firma. There is a federal government-subsidized ferry linking the Magdalen Islands with Prince Edward Island, between Cap-aux-Meules and Souris. The Vacancier is the only boat subsidized by the Quebec government that provides the same link between the Islands and Quebec.

(2)         The lack of a navigation simulator in Quebec prevents the applicant's employees (captains or officers) from obtaining the pilot's licence issued by the L.P.A.

(3)         The definition of "ferry" in the Fee Schedule of the Canadian Coast Guard refers to the carriage of passengers, cargo and vehicles on a scheduled run between two or more points over the most direct water route. This description corresponds completely to the vessel Vacancier.

(4)         In British Columbia the vessel Queen of the North navigates over a long distance within the Inside Passage. The vessel is exempted from the compulsory pilotage requirement although its route and its operation, as both a carrier of persons, vehicles and cargo and as a cruise ship, are very similar to those of the vessel Vacancier.

Respondent's expert, Pierre Boisvert

(1)         The vessel Vacancier does indeed provide a link between Quebec and the Islands, but in the form of a marine service, not a ferry. If, at most, one can speak of a ferry in regard to the Cap-aux-Meules-Matane section, it is not strictly speaking of a ferry from Matane on, as the boat hugs the shores of the river. In fact, from Matane or its vicinity (Les Escoumins, more accurately), pilotage becomes compulsory, therefore, in the part that does not correspond to the idea of a crossing or ferry.

(2)         A navigation simulator, while desirable, is not essential to pilot training. It is available in the Maritimes. Other navigators have obtained their pilot's licence from the L.P.A. without using the simulator.

(3)         Different regulations correspond to different realities and different needs. It is not enough to cite another regulation to be able to determine that the vessel Vacancier is a ferry for the purposes of the Laurentian Pilotage Authority Regulations. The notion of "ferry", particularly on the St. Lawrence River, covers the crossing of the watercourse to link the two shores of the river. The exemption is granted to ferries because they need not take the navigation channel over the compulsory pilotage distance, from Les Escoumins to Montréal. It is this fundamental difference between the river ferries and the vessel Vacancier that explains the L.P.A.'s refusal to consider the Vacancier a ferry.

(4)         It is not possible nor desirable to compare the regulations and modes of exemptions from one region of the country to another. The two vessels, Queen of the North and Vacancier, are indeed very similar and provide similar services. However, the reasons why the Pacific Pilotage Authority would elect to exempt the Queen of the North from compulsory pilotage is explained by the assessment that is made there of the safety and hazards of navigation. In point of fact, navigation is particularly difficult in the St. Lawrence River, and that is why the L.P.A. has established the two compulsory pilotage areas.

ISSUE

[15]       Is the C.T.M.A. Vacancier a ferry within the meaning of the Laurentian Pilotage Authority Regulations?

LEGISLATION

[16]       The Pilotage Act creates pilotage Authorities, each responsible for ensuring safety of navigation in a particular region.

[17]       The L.P.A. is responsible for the following region (Schedule):

[18]       The Authority establishes, by regulation, the compulsory pilotage areas, and ships are subject to them or exempted from them:

[19]       The Laurentian Pilotage Authority Regulations describe the compulsory pilotage area as follows (Schedule I of the Regulations):

[20]       The Regulations prescribe the classes of boats that are subject to compulsory pilotage or exempted from it:

ANALYSIS

[21]       The parties present certain arguments in light of the case law and statutes to illustrate the intended meaning of "ferry", but I do not think these are essential in order to determine an issue that in the last analysis is fairly straightforward. For example, in the Fee Schedule for Marine Navigation Services (Fees to be Paid for Marine Navigation Services provided by the Canadian Coast Guard), a ferry is defined as follows:

"ferry" means a ship that has facilities primarily for carrying passengers, roll on/roll off cargo, vehicles and/or trailers, and is operated on a scheduled run between two or more points over the most direct water route.

[22]       The applicant argues that this definition corresponds in every respect to the situation of the vessel Vacancier. The respondent objects that the "most direct water route" presumes that there is no other transit route that would fulfill the same objective. The respondent cites cases in which the notion of ferry has been defined as a continuation of a route, replacement of a bridge or means of crossing a body of water:

Prince Edward Island v. Canada, [1976] 2 F.C. 712 (T.D.), para. 45:

An ancient definition of the word "ferry" was the right of ferrying men, animals and goods across a body of water and of levying a toll for so doing. (...) In this day and age (...) the language of the Order in Council must be interpreted as meaning that a ferry service for the conveyance of passengers is to include the automobile of the passenger, just as it would include the passenger's baggage and like appendages.

Dinner v. Humberstone (1896), 26 S.C.R. 252, p. 267:

(...) ferries are a kind of highways which have their peculiar incidents, (...)

[23]       The applicant replies that the definition in the legislation should prevail over general or jurisprudential definitions. I think the Interpretation Act, c. I-21, responds to the issue of how to construe the term found in the Regulations:

[24]       We could discuss at some length whether the Vacancier is a "ferry", but I think the important thing here is the actual reason for the Regulations. The idea of compulsory pilotage is to ensure the safety of ships and passengers in areas in which navigation, for various reasons, is difficult. It is the L.P.A. that is responsible for determining what these dangerous areas are, and the terms and conditions that will apply to vessels that navigate in them.

[25]       At most, the Vacancier's route from the Magdalen Islands to Matane could be said to constitute a ferry route. However, irrespective of the definition given to ferry, the fact is that the vessel Vacancier, when it navigates within the compulsory pilotage area, from Les Escoumins to Montréal, does not have a ferry route. It does not cross from one shore to another, but goes up the river from the stopover in Matane over a distance of 340 nautical miles. It follows the navigation channel taken by the other boats subject to compulsory pilotage. Its tonnage, its dimensions and the number of passengers it carries justify the presence aboard of qualified pilots.

[26]       The L.P.A. provides an exemption for vessels on the river whose route cuts across the navigation channel. There is no reason to think that a vessel whose route follows the channel throughout its length should be exempted from the conditions imposed on the other ships of similar tonnage and dimensions, irrespective of the designation given to the vessel or its classification by Lloyd's Register.

[27]       The applicant suggests that the Court should give favourable consideration to the application by drawing on the fact that the boat Queen of the North, a "ferry" operating in British Columbia between Prince Rupert and Port Hardy on Vancouver Island, follows a route of several hundred nautical miles between these two destinations and is not subject to compulsory pilotage.

[28]       The Pacific Pilotage Regulations, C.R.C., c. 1270, now provide an exemption for ferries. Through an amendment published in the Canada Gazette on June 12, 2003 [July 2, 2003], the Regulations Amending the Pacific Pilotage Regulations, SOR/2003-224, the definition of ferry is added to section 1 and ferries are now exempted from the compulsory pilotage requirement:

[29]       This administrative decision, in my opinion, adds nothing to the applicant's case. The Inside Passage, in which the Queen of the North navigates, is not a compulsory pilotage area under the Regulations. The exemption for ferries does not concern this vessel, therefore, irrespective of whether it is or is not a "ferry" under the Regulations. The Laurentian Pilotage Authority Regulations, for that matter, do not define the word "ferry", nor does the Pilotage Act. So the problem remains.

[30]       The applicant argues that its crew is amply qualified to navigate on the St. Lawrence River. It does not fall to this Court to judge the competence of the applicant's captains and officers. Parliament has elected to assign that responsibility to the L.P.A., which provides a certification program for obtaining the pilot's licence or certificate of pilotage. The applicant has not persuaded me that it was impossible for its employees to obtain the licence or the certificate due to the absence of a navigation simulator in Quebec. The simulator is available elsewhere, in the Maritimes, and its use is not a prerequisite to obtaining the licence. In short, the condition imposed by the L.P.A. of having licenced pilots or holders of a certificate on board in order to qualify for exemption from the duty to hire L.P.A. pilots does not appear to me to be excessively onerous, and it fulfills the obligations of ensuring safe traffic on the St. Lawrence.

[31]       For these reasons, I am of the opinion that this application should be dismissed. For the purposes of the application of the Laurentian Pilotage Authority Regulations, the C.T.M.A. Vacancier is not a ferry.

JUDGMENT

-            The Court dismisses the application for a declaratory judgment;

-            The Court finds that the C.T.M.A. Vacancier is not a ferry for the purposes of the application of the Laurentian Pilotage Authority Regulations;

-            With costs to the respondent Laurentian Pilotage Authority.

                          "Pierre Blais"

                                  Judge

Certified true translation

Suzanne Gauthier, C.Tr., LL.L.

FEDERAL COURT

NAMES OF SOLICITORS WHO APPEARED AT THE HEARING

DOCKET:                                               T-275-03

STYLE:                                                   NAVIGATION MADELEINE INC.

v.

THE ATTORNEY GENERAL OF CANADA

and

LAURENTIAN PILOTAGE AUTHORITY

PLACE OF HEARING:                       MONTRÉAL

DATE OF HEARING:                         NOVEMBER 26, 2003 AND JANUARY 7, 2004

REASONS FOR JUDGMENT

AND JUDGMENT:                              Mr. Justice Blais

DATED:                                                January 15, 2004

SOLICITORS OF RECORD:

FRANCIS GERVAIS                                           APPLICANT

LAVAL, QUEBEC

GUY P. MAJOR                                                               RESPONDENT

MONTRÉAL, QUEBEC                                                 LAURENTIAN PILOTAGE AUTHORITY