March Shipping v. Canada (Minister of Citizenship and Immigration), 2002 FCT 294

                                                                    Date: 20020319

                                                               Docket: IMM-1705-01

                                                  Neutral Citation: 2002 FCT 294

Between:

                              MARCH SHIPPING

             A division of Nortec Marine Agencies Inc.,

                                                                Applicant,

                                 - and -

                      THE MINISTER OF CITIZENSHIP

                             AND IMMIGRATION,

                                                               Respondent.

                          REASONS FOR ORDER

PINARD J.:

   The applicant seeks judicial review of the filing of a Certificate against the applicant in the matter of subsection 92.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") on January 8, 2001 (Federal Court of Canada, Trial Division, Court No. IMM-101-01) and of the directions to deposit security in the matter of the eight deserters of the S.S. "SEABREEZE I" issued under subsection 92(2) of the Act by the Department of Citizenship and Immigration.

   The applicant is a division of Nortec Maritime Agencies Inc. Prior to the arrest of the ship, the applicant was acting as the ship's agent at the request of and for and on behalf of Premier Operations Ltd., owner and operator of the said ship. On or about September 13, 2000, Premier Operations Ltd. became insolvent and was subsequently made the subject of liquidation proceedings in Bermuda on or about September 18, 2000.

   On September 14, 2000, the ship was arrested in the port of Halifax, Nova Scotia, Canada, by Unitor A.S.A.

   The general declaration for the ship is dated September 14, 2000, and lists her owners as "Premier Cruises" and the agent as "March Shipping".

   On September 28, 2000, three crew members deserted the ship: Marko Luzagic, Orlando Ancona Sinclair, and Neven Urosevic.

   While the applicant was rendering services to DLJ Capital Funding Inc., mortgagee of the ship, four additional crew members deserted the ship: Aleksandar Bogdanovic and Ivana Zecevic on October 20, 2000; Ratko Antovic on November 16, 2000; and Pavle Andesilic on December 6, 2000.

   On December 7, 2000, the ship was sold to DLJ Capital Funding Inc. This same day, an additional crew member deserted the ship, Dejan Matijevic.

   The applicant received a Notice to Creditors by letter dated December 22, 2000.

   Pursuant to the eight deserter ex-crew members of the ship, the applicant received directions to deposit security under subsection 92(2) of the Act. The security deposit requested for each deserter is in the amount of $15,000.00 for a total claim of $120,000.00.

On January 8, 2001, the applicant was served with a Certificate dated January 8, 2001 stating that $105,000.00 had not been deposited pursuant to the directions issued under subsection 92(2) of the Act.

The relevant provisions of the Act read as follows:

2. In this Act,

[. . .]

"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, and

(b) for the purposes of subsections 89(2) to (7), sections 92 and 93 and paragraph 114(1)(cc), includes any such person or group that operates a bridge or tunnel or is a designated airport authority within the meaning of the Airport Transfer (Miscellaneous Matters) Act;

2. (1) Les définitions qui suivent s'appliquent à la présente loi.

[. . .]

"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. S'entend en outre, pour l'application des paragraphes 89(2) à (7), des articles 92 et 93 et de l'alinéa 114(1)cc), de l'exploitant d'un pont ou d'un tunnel ou d'une administration aéroportuaire désignée aux termes de la Loi relative aux cessions d'aéroports. La présente définition s'applique aux gouvernements fédéral et provinciaux ainsi qu'aux municipalités, dans la mesure où ils exploitent ou fournissent un tel service.

91.1 (1) The Minister may, in accordance with the regulations, make a preliminary assessment of an administration fee against a transportation company in respect of any member of a class of persons prescribed for the purposes of this section

(a) who is brought to Canada by the company and who is the subject of a report pursuant to paragraph 20(1)(a) or a report pursuant to paragraph 27(2)(f) for having eluded examination; or

(b) who enters Canada as or to become a member of the crew of a vehicle operated by the company and who is the subject of a report pursuant to paragraph 27(2)(e) as a member of a crew who has ceased to be a visitor pursuant to paragraph 26(1)(c.1).

91.1 (1) Le ministre peut imputer provisoirement au transporteur des frais administratifs, selon le tarif réglementaire, pour toute personne faisant partie d'une catégorie précisée par règlement pour l'application du présent article, dans les cas suivants :

a) la personne a été amenée au Canada par le transporteur et fait l'objet du rapport visé soit à l'alinéa 20(1)a), soit à l'alinéa 27(2)f) pour s'être dérobée à un interrogatoire;

b) la personne est entrée au Canada à titre de membre du personnel d'un véhicule exploité par le transporteur ou pour le devenir et fait l'objet du rapport visé à l'alinéa 27(2)e) à titre de membre du personnel qui a perdu la qualité de visiteur aux termes de l'alinéa 26(1)c.1).

92. (2) Where a vehicle owned or operated by a transportation company that has not deposited the required sum of money or other security pursuant to a direction issued under subsection (1) comes into Canada, the Deputy Minister may issue a direction to the master of the vehicle or to the transportation company requiring the master or company to deposit with Her Majesty in right of Canada such sum of money, in Canadian currency, or such other prescribed security as the Deputy Minister deems necessary as a guarantee that the company will pay all amounts for which it may become liable under this Act in respect of that vehicle after the direction is issued.

92. (2) En l'absence du cautionnement visé au paragraphe (1), le sous-ministre peut, à l'arrivée d'un véhicule au Canada, ordonner au responsable de celui-ci, ou au transporteur, qu'il soit propriétaire ou exploitant du véhicule, de déposer auprès de Sa Majesté du chef du Canada une somme d'argent, en monnaie canadienne, ou tout autre cautionnement réglementaire qu'il estime nécessaire pour garantir le paiement par le transporteur des frais qui pourraient, du fait du véhicule, être mis à sa charge conformément à la présente loi après qu'il en a été ainsi ordonné.

In Greer Shipping Ltd. v. Canada (M.C.I.), [2001] 2 F.C. 357, my colleague Justice Dawson considered the question of the standard of review applicable when determining who is an agent of a transportation company, and as such, liable for administration fees under the Act. The following is stated at page 372:

[29]     As noted by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 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 to a somewhat probing examination (being a review on the standard of reasonableness simpliciter).

The applicant claims that it cannot be held liable for the administrative fees for the period in which it was providing marine agency services on behalf of DLJ Capital Funding Inc., mortgagee of the ship. It is thus argued that the applicant had ceased being agent of a "transportation company" for the purposes of subsection 92(1) of the Act as the ship became insolvent on September 13, 2000. I cannot agree with this argument in light of the evidence and jurisprudence before me.

In Flota Cubana de Pesca v. Canada (M.C.I.), [1998] 2 F.C. 303, the Federal Court of Appeal confirmed that Part V of the Act should receive a broad interpretation. Justice Stone explained as follows at page 321:

[32]     I would note that the majority of these provisions in Part V and of those in subsection 114(1) which pertain to transportation companies, are broad in their language and scope. Apart from sections 89 and 89.1 and paragraphs 114(1)(q) and (q.1), none of the other sections is aimed directly at or restricted in its application to companies which provide a transportation service to travellers. Indeed, a number of provisions are directed specifically at recouping the expenses associated with removing crew members who have no legal right to remain in Canada. Crew members may be employed and conveyed into Canada on all manner of vehicles, whether the vehicle is used primarily for the transportation of persons or goods for hire, or otherwise. According to the applicants' interpretation of "transportation company", only those companies whose primary business is the transportation of persons or goods for hire may be held liable for the costs of removing crew members. However, I can see no reason why Part V of the Act should receive so limited an interpretation.

[33]     What, in my view, Part V of the Act reveals is that its overarching purpose 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. To my mind, the more expansive definition of "transportation company" reflected in the English version of the Act best accords with this purpose, and expresses the true meaning of the provision. The effect of sections 91.1 and 92 is to make removal expenses a potential cost of doing business for all companies which transport or provide for the transportation of persons or goods to Canada.(My emphasis.)

I believe it was reasonable for the respondent to have concluded that the applicant was acting as agent for the transportation company which brought the ship and the deserters to Canada.

As stated in Flota Cubana de Pesca, supra, and confirmed in Greer Shipping Ltd., supra, at page 379, paragraph 59, the appropriate interpretation given to the term "transportation company" should be a broad one. When examining the underlying objectives of subsection 91.1(1) and section 92 of the Act from both an economical and social point of view, I feel it is only logical that the entity responsible for removal costs of persons who have ceased to be visitors to Canada should be the transportation company which brought the deserters into the country.

After having reviewed the documentation submitted by the applicant, other than two affidavits by individuals demonstrating that the vessel had become insolvent on September 13, 2000 and liquidation proceedings took place on September 18, 2000, there does not appear to be any concrete evidence confirming that this information was provided to the respondent.

As well, I do not believe that the respondent had been notified by the applicant that it had formally terminated its services with Premier Operations Ltd. when the directions had been issued under subsection 92(2) of the Act. As evidenced first of all by the applicant's documentation, March Shipping was in fact acting as agent for the ship's owner, Premier Operations Ltd. at the moment of the arrest.

I find also that the applicant appears to satisfy the general definition of agency as defined by Justice Dawson in Greer Shipping Ltd., supra, at page 386, paragraph 77. Here, of the eight notices of desertion received by the respondent, six of them indicated March Shipping as the agent of the ship. As well, at page 76 of the Tribunal Record, a General Declaration for Revenue Canada Customs and Excise is signed by an individual in the name of March Shipping as agent. This declaration is dated September 14, 2000, a day after the said date of insolvency.

For the foregoing reasons, I am of the view that it was reasonable for the respondent to conclude that the applicant was acting as agent for Premier Operations Ltd. which brought "SEABREEZE I" and its deserters into Canada, and is therefore liable for the administration fees and removal costs associated with those deserters.

Consequently, the application for judicial review is dismissed.

The following question is certified pursuant to subsection 83(1) of the Act:

In the case of a person or corporation who was declared to be acting as "agent" for a principal (such principal being a "transportation company" within the meaning of subsection 2(1) of the Immigration Act) at the time the "vehicle" (as also defined in subsection 2(1) of the Immigration Act) was brought to Canada, does that agent remain a transportation company, and therefore liable as such under Part V of the Immigration Act, when and from the time his mandate is terminated by reason of bankruptcy, liquidation or receivership of the principal, an agreement between the principal and the agent, or the principal is no longer responding and providing instructions to the agent in respect of his mandate?

       JUDGE

OTTAWA, ONTARIO

March 19, 2002