Date: 20081003
Docket: T-875-06
Citation: 2008 FC 1094
Ottawa,
Ontario, October 3,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Appellant
and
THE ADMINISTRATOR OF THE
SHIP-SOURCE OIL POLLUTION FUND
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a statutory appeal from a decision of the Administrator of the
Ship-source Oil Pollution Fund (the Administrator) pursuant to subsection 87(2)
of the Marine Liability Act, 2001, c-6 (the MLA). The appeal concerns
the adequacy of an offer of compensation offered to Transport Canada by the
Administrator in the amount of $20,000 for the cleanup and disposal of
the wooden tug boat “Mary Mackin” in February 2005.
I. Factual
Background
[2]
The
“Mary Mackin” (the Vessel) was a wooden tugboat constructed in the 1940s and
reworked in the 1960s. The Vessel had been retired from active service since
the early 1980s.
[3]
The
ownership of the Vessel is in dispute. The Appellant submits that the tugboat
was owned by a private individual named Ronald Cook. The amicus curiae
appointed by the Court, J. William Perrett, states that the registered
owner was Blue Whale Yacht Charter and Sales Ltd., but the company was
dissolved by the BC Registrar of Companies in 1989. The Administrator alleges
that the registered owner was Blue Whale Yacht Charter and Sales Ltd. and the
president of that company was Mr. Cook.
[4]
On
March 10, 1997, the Vessel was taken in tow by the Canadian Coast Guard after
it was found drifting unsafely toward a dock in Saanichton, British
Columbia.
The Receiver of Wrecks ordered the Vessel removed pursuant
to section 16 of the Navigable Waters Protection Act, R.S. 1985, c. N-22
(the NWPA) and the Vessel was delivered to the Institute of Ocean Sciences
(IOS), a federal government facility in Patricia Bay, British Columbia. The Vessel
was collected by Mr. Cook on April 14, 1997 and moved to Bazan Bay near James Island.
[5]
On
February 12, 1998, the Vessel appeared to be unmanned, adrift and endangering a
ferry dock in Sidney,
British
Columbia.
Since the Vessel had no anchoring capabilities, it was towed to the IOS
facility, where it was tied alongside another vessel.
[6]
On
February 16, 1998, the Vessel was detained by Transport Canada under subsection
310(1) of the then Canada Shipping Act, R.S., c. S-9, s.1. This was
apparently done to prevent Mr. Cook from attempting to remove the Vessel
in an unsafe manner, by requiring him to provide a plan for its safe removal
from the IOS facility.
[7]
The
Appellant states that Mr. Cook was contacted to collect what was allegedly his tugboat.
In response, Mr. Cook apparently intended to recover the Vessel as soon as he
could.
[8]
From
the time it was taken to the IOS facility, the Vessel had to be pumped daily in
order to stay afloat. Approximately 7,000 gallons of water were being pumped
per day by IOS personnel, at a cost of $432 per week.
[9]
A
survey by Meadows Marine Surveyors Ltd. (Meadows) in April 1998,
reported the presence of 10,000 gallons of tankage aboard the Vessel and that the
fuel tanks were corroding. The surveyor stated that “there is no value
remaining in the vessel and its equipment.”
[10]
Another
survey completed around the same time by J.R. Down noted that while the fuel
tanks were not sounded, he was struck by the quantity of old oil present within
the engine room and the bilges.
[11]
On
October 31, 1998, James Naylor, the acting Superintendent of Transport Canada’s Navigable
Waters Protection Program and representative of the Receiver of Wrecks at the
time, decided that the Vessel should be beached to prevent her from sinking.
[12]
On
November 5, 1998, the Vessel was boarded by G. Kosanovich of Transport Canada,
his solicitor, and the surveyor Maurice Gagne of Horseshoe Bay Marine Group (Horseshoe Bay). The report
by Horseshoe
Bay
noted that the Vessel was in danger of breaking up and that there was a “strong
smell of fuel coming from the engine room …”.
[13]
Noting
that there was a potential pollution hazard, Horseshoe Bay recommended
placing a containment boom around the Vessel and relocating it to the boat ramp
of the ISO facility. The report also recommended removing the contaminants and
then demolishing the Vessel, at an estimated total cost of $120,000 for the
project.
[14]
After
the Vessel had been beached, the Appellant advised Mr. Cook that the Vessel had
been detained pursuant to the then Canada Shipping Act and could not be
moved until released from detention.
[15]
On
November 17, 1999, Captain Donald Mackenzie, while carrying out a further
survey of the Vessel to study the possibility of moving it from its present
location, found a considerable amount of water inside the Vessel. He also
noticed oil on the water inside the Vessel, but not outside the hull.
[16]
Upon
observing oil on the surface of the water inside the Vessel, Captain Mackenzie
contacted Mr. Cook, who advised him that the Vessel’s aft fuel tank had been
used as a slop tank for used oil and contaminated fuel for several years.
[17]
Captain
Mackenzie believed that the Vessel was not hogged, sagged or twisted and
therefore could be refloated. He estimated the cost of raising the Vessel,
patching it and pumping out the fuel tanks at $26,867.50 not including tank
truck rental, fluid disposal costs and any clean up costs.
[18]
On
February 20, 2004, more than five years after the Appellant had beached the
Vessel, the Receiver of Wrecks wrote to Mr. Cook ordering the removal of the Vessel
by April 30, 2004. This was not done.
[19]
The
Appellant states that Mr. Cook was extradited and incarcerated in the United
States
from 2002 until September 2004, but that he intended on retrieving the Vessel
upon his release from custody. The Appellant claims that correspondence still
continued between the Crown and Mr. Cook during his incarceration.
[20]
On
July 27, 2004, the Vessel caught fire and was severely damaged. Bob Gowe,
acting Superintendent of the Navigable Waters Protection Program at the time,
determined that, in the interests of public and maritime safety, imminent
action to remove and dispose of the Vessel was necessary in accordance with
section 16 of the NWPA.
[21]
On
August 16, 2004, Saltair Marine Services Ltd. (Saltair) estimated the cost of
disposal of the Vessel to be $55,080. This was the lowest of three bids that
were tendered and was accepted by Transport Canada. That bid
assumed the Vessel to be clean of petroleum products.
[22]
On
December 22, 2004, Saltair submitted a bid to destroy the Vessel for $59,580.
The request for tender said nothing about the contaminants on board.
[23]
On
January 6, 2005, an environmental screening report, which was required in advance
of the destruction of the Vessel, concluded that “the project is not likely to
cause significant adverse environmental effects.” The report said nothing about
the oil in the tanks aboard the Vessel. A copy of that report was provided to
Saltair.
[24]
During
the course of the dismantling of the Vessel by Saltair, a substantial amount of
oil was found aboard the tugboat. One 31,500 litre fuel tank was removed and
over 1,000 litres of engine oil and a large quantity of oil soaked mud was
found on the Vessel. Oil and fuel was also found in the piping system under the
mud level inside the Vessel, which was not characteristic of Vessels of that era
and type, but this tugboat had been reworked in the 1960s.
[25]
As
a result of discovering the pollutants, the plans for the demolition of the Vessel
had to be redrawn, because the initial plan to lighten the hull to transport it
for final demolition elsewhere became impractical. Work was suspended on
January 27, 2005 and Saltair presented an account to Transport Canada for
expenditures to January 28, 2005 of $70,283.36.
[26]
Demolition
and clean up began again on February 3, 2005 and continued until onsite work
was completed on February 15, 2005. Final waste disposal was completed on
February 16, 2005.
[27]
The
total cost of cleaning and destroying the Vessel is stated at $223,543.88.
[28]
On
July 27, 2005, Transport Canada made an application for compensation from
the Administrator in the amount of $223,543.88 in relation to the
efforts “it took to prevent, minimize and remedy oil pollution from the
Vessel.”
[29]
The
Ship-source Oil Pollution Fund (the Fund) was established in 1989 under the
then Canada Shipping Act and is now governed by the Marine Liability
Act (MLA). As required by section 86 of the MLA, the Administrator investigated
and assessed the claim and made an offer of compensation to the Appellant on
March 21, 2006, in the amount of $20,000 on the basis that Transport Canada had
been negligent in the manner in which it dealt with the pollution. By failing
to remove the contaminants in the Vessel prior to its beaching in 1998, the
Vessel subsequently filled with mud and eventually burned. The Administrator stated
that had Transport Canada acted properly, it would only have had to spend
$20,000.
[30]
On
May 6, 2006, Transport Canada contacted the Administrator to ask if he
would disclose the report of the surveyor he retained upon which he relied to
arrive at the amount of $20,000. The Administrator denied the request, saying
that it was not his “usual practice”.
[31]
On
May 23, 2006, the Crown filed a Notice of Appeal to the Federal Court pursuant
to subsection 87(2) of the MLA.
[32]
After
the filing of the Crown’s Notice of Appeal, the Administrator invoked
that he was not properly named as a Respondent by the Crown because he rendered
the decision under appeal. On June 19, 2007, Justice Martineau ordered that the
Administrator continue “out of necessity” to be named as Respondent on the
appeal since the Crown was unwilling to act as both Applicant and Respondent to
its appeal. Justice Martineau also ordered that an independent counsel be
appointed as an amicus curiae since “the Court should have the benefit
of having contradictory submissions with respect to the issues debated in the
appeal”. On August 1, 2007, based on the joint submissions of the parties,
Justice Martineau ordered that J. William Perrett be appointed to act as amicus
curiae “to assist the Court in respect of the grounds of appeal” raised in
the Crown’s Notice of Appeal.
II. Issues
[33]
The
following questions have been raised by the Appellant:
1. What is the
scope of an appeal made pursuant to subsection 87(2) of the MLA?
2. What is the
appropriate standard of review for the Administrator’s decision?
3. Did the
Administrator err in holding that the Crown was negligent?
4. Did the Administrator’s
decision breach the rules of procedural fairness and evidence by relying on an
undisclosed expert report?
5. If so, what
is the appropriate remedy?
6. Should costs
be awarded to the Crown in respect of the appeal and the amicus curiae’s
fees and disbursements?
III. Relevant Legislation
[34]
The
relevant legislation is included in the Annex “A” at the end of these reasons.
IV. Analysis
[35]
The
Respondent has provided comments on issues 1 and 2: the scope of the appeal and
the standard of review. The amicus curiae has decided to comment on
issues 3, 4 and 5: the Crown's negligence, breach of the rules of procedural
fairness and the appropriate remedy.
A. What is the appropriate
standard of review of the Administrator's decision?
[36]
For
the sake of clarity in the analysis, I shall first address the issue of the
appropriate standard of review, which will permit a correct analysis of the
scope of the appeal.
[37]
In
the recent decision of Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, the Supreme Court of Canada concluded that there are only
two standards of review: correctness and reasonableness. The Court described
the new standard of reasonableness at paragraph 47:
Reasonableness
is a deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within
the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. …
[38]
The
Appellant properly states that although the case at bar constitutes a statutory
appeal rather than a judicial review application, a standard of review analysis
should still be undertaken, since the jurisprudence does not seem to clearly determine
the degree of deference to be accorded in this particular situation.
[39]
The
Appellant submits that the appropriate standard of review is that of
correctness, whereas the Respondent trusts that reasonableness is the
appropriate choice. For the reasons below, I am of the opinion that the
decision of the Administrator should be reviewed under the standard of
reasonableness.
(1) Statutory
right of appeal and privative clause
[40]
There
is a statutory right of appeal of the Administrator’s decision pursuant to subsection
87(2) of the MLA. Furthermore, the decision of the Administrator to offer
compensation pursuant to section 86 is not protected by a privative clause.
[41]
The
Appellant argues that the presence of an appeal as of right and the absence
of a privative clause illustrate the intention of Parliament to expose the
Administrator’s decisions to searching court scrutiny and oversight. The
Respondent states that the absence of a privative clause is a neutral factor in
this situation.
[42]
I
agree with the Respondent that the absence of a privative clause “does not
imply a high standard of scrutiny” and the silence of the statute on the
question of review constitutes a neutral factor (see Dr. Q v. College of
Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R.
226 at paragraph 27 citing Pushpanathan v. Canada (Minister of Citizenship
and Immigration), [1998] 1 S.C.R. 982 at paragraph 30).
(2) Expertise of the
Administrator
[43]
The
question to be decided by the Administrator is the adequacy of the offer
of compensation to be made to for the expenses incurred to “prevent, repair,
remedy or minimize oil pollution damage from the ship…” (section 51 of the MLA)
as well as the evaluation of possible negligence of the Crown in assessing the
appropriate compensation.
[44]
Although
the provisions of the MLA do not require that the Administrator possess any
expert qualifications or particular experience, the role he routinely plays contributes
to developing a particular expertise. As stated in Dr. Q, above, at
paragraph 29:
… an administrative body might be so
habitually called upon to make findings of fact in a distinctive legislative
context that it can be said to have gained a measure of relative institutional
expertise.
[45]
The
Appellant’s claim that the Federal Court, sitting in this case as the Admiralty
Court, possesses all the necessary expertise to assess whether an individual
was negligent in a maritime matter does not consider the entire issue and
inappropriately dismisses the Administrator’s discretionary expertise in
investigating and assessing a situation and making an offer of compensation.
[46]
The
Administrator has developed an expertise in the area of maritime oil
pollution and the investigation of facts which lead to appropriate offers of
compensation. The fact that he can call upon professional, technical and other
advice and assistance in the performance of his duties, pursuant to section 81
of the MLA, does not diminish his expertise. Therefore, I think that this
factor attracts deference.
(3) Purpose of the
statute
[47]
Section
51 and subsection 86(3) of the MLA describe the role of the statute to evaluate
the appropriate offer of compensation by considering various factors, such as
the negligence of the claimant.
[48]
The
Appellant has shown that the functions of the Administrator in investigating
and assessing claims are clearly defined in the statute. The Respondent replies
that potential scope of the decisions of the Administrator is extensive and has
great impact.
[49]
Although
the scope of the functions of the Administrator is rather limited, the ability
of the Administrator to investigate and assess claims is far-reaching, notably
the Administrator’s duty to make offers of compensation “for whatever portion
of the claim the Administrator finds to be established.” This factor points toward
showing more deference toward the Administrator’s decision.
(4) Nature
of the problem
[50]
The
Appellant submits that since its argument on the appeal is that the
Administrator erred by applying the incorrect standard of care in his
negligence analysis, this represents an extricable and pure question of law. According
to the Respondent, this is a decision involving mixed fact and law, therefore,
the reasonableness standard “must apply to the review of questions where the
legal and factual issues are intertwined and cannot be readily separated” (Dunsmuir,
above, at paragraph 53).
[51]
In
the case at bar, although there is no privative clause, the expertise of the
Administrator in applying the discrete and administrative compensation regime
of the Fund is indisputable. The Administrator regularly completes
investigations and draws conclusions to offer appropriate compensation,
pursuant to its mandate under the MLA.
[52]
Moreover, the nature
of the legal question at issue is not one that is of central importance to the
legal system and outside the specialized expertise of the Administrator.
Deference is also applicable here.
[53]
As
stated in Dunsmuir, above, for a decision to be reasonable there must be
justification, transparency and intelligibility within the decision making
process. The decision must fall within a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law.
B. What is the scope of the
appeal?
[54]
The
MLA is silent upon the scope and form of the appeal. The Appellant submits that
the fact that this is a statutory appeal and not a judicial review application
is important because the jurisdiction of a court on appeal is much broader than
the jurisdiction of a court hearing a judicial review application. The
Appellant considers that every statutory appeal is actually a “re-hearing” of
the decision under appeal whereby the matter is removed from the lower tribunal
and put to the court “for the purpose of testing the soundness of the decision”
at issue (see Srivastava v. Canada (Minister of Manpower and Immigration),
[1973] F.C. 138 (F.C.A.) at paragraph 21).
[55]
In
reply, the Respondent cites a number of cases concerning the Ontario Securities
Commission in proposing that an appeal of an administrative decision does not
equate to a trial de novo, even when the statute is silent (Re C.T.C.
Dealer Holdings Ltd. et al. and Ontario Securities Commission et al., 37
D.L.R. (4th) 94, (1987) 59 O.R. (2d) 79 (Ont. H.C.); Royal
Trustco Ltd. et al. and Ontario Securities Commission, 148 D.L.R. (3d) 301,
(1983) 42 O.R. (2d) 147 (Ont. H.C.); Denison Mines Ltd. and Ontario
Securities Commission, 122 D.L.R. (3d) 98, (1980) 32 O.R. (2d) 469, 122
D.L.R. (3d) 98 (Ont. H.C.). The grounds of statutory appeal are variable and “Where
there is an appeal, […] its nature must be determined by reference to the
statute that creates it” (Srivastava, above, at paragraph 20). The objective
of the appeal in the case at bar is that the Court must only consider whether each
part of the claim is for pollution prevention or remediation costs as defined
in subsection 85(1) and whether part of the claimed amounts arose due to
the negligence of the Appellant.
[56]
In
Bell Canada v. Canada (Canadian
Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, the
Court stated at paragraphs 31 and 32 that:
… In principle, a court is entitled, on
appeal, to disagree with the reasoning of the lower tribunal.
However, within the context of a
statutory appeal from an administrative tribunal, additional consideration must
be given to the principle of specialization of duties. …
Considering the expertise of the
Administrator, deference must be shown in this case and the Court must not
substitute its decision to the Administrator’s unless an unreasonable
conclusion has been demonstrated.
C. Negligence of the Crown
(1) Reasonable
shipowner standard
[57]
The
Appellant submits that the error of law committed by the Administrator is the
assessment of the Crown’s conduct in accordance with a “reasonable shipowner”
standard because the Crown is not the owner of the Vessel. Rather, the Minister
of Transport was a public regulator exercising a statutory discretion under the
section 16 of the NWPA in respect of a privately owned Vessel in order to
prevent it from becoming an obstruction to navigation.
[58]
According
to the Appellant, the Minister’s delegates exercised their statutory discretion
in a reasonable manner in declining to demolish and remove the privately owned
Vessel until it posed a clear and imminent danger to navigation. The statutory
duty to remove the oil from the Vessel pursuant to section 51 of the MLA rested
on the owner of the ship and not on the Crown as public regulator.
[59]
The
amicus curiae, on the other hand, submits that the MLA does not
place such a statutory obligation on the owner but instead, provides that the
owner is liable for costs incurred by other parties “to prevent, repair, remedy
or minimize oil pollution damage from the ship…” Under the Canada Shipping
Act, “Steamship Inspectors” and “Pollution Prevention Officers” are
appointed to administer the regulations enacted under the Act. The amicus
curiae states these Inspectors and Prevention Officers have the required
knowledge and expertise to ensure that ships are safe, meaning that Transport
Canada, as a specialized regulator, possesses at least all of the
knowledge and expertise, if not more, of a “reasonable shipowner.
[60]
The
amicus curiae further adds that during the time the Appellant had
possession of the Vessel between February 12, 1998 until October 31, 1998, there
was sufficient information available from its own records and independent
surveyors to know that there was fuel and oil on board the Vessel and that a
determination of the amount of fuel and oil on board was required. In
particular, since personnel pumped 7,000 gallons of water per day from the Vessel,
the Appellant should have known or determined that there was fuel and
contaminants on board, making the Vessel unsafe (see reports by Meadows, April
1998 and Horseshoe Bay, November 1998).
2. Crown
Liability and Proceedings Act; Owner as bona vacantia; gratuitous
bailment
[61]
The
Court need not address the Appellant's argument on the "reasonable shipowner"
standard and the amicus curiae’s
arguments on the issues mentioned in the above heading because it finds that the
lengthy delay before sending out the Removal Order and disposing of the
contaminants on board the Vessel by the Appellant was unreasonable in the circumstances.
The Appellant was negligent in waiting five years before responding to its
statutory obligations under the MLA. This is especially true since Mr. Cook’s
intention to retrieve the Vessel was not clear and the Appellant knew or should
have known there was fuel and oil on board the Vessel.
[62]
The
Appellant had the knowledge, expertise and statutory powers (subsection 678(1)
of the Canada Shipping Act)
to
destroy the vessel and its content long before it did to prevent pollution
damage from the vessel. Their delay in exercising its statutory powers in a
timely fashion increased the Appellant's claim in an
unnecessarily way.
D. Did the Administrator's
decision breach procedural fairness and the rules of evidence?
[63]
As
stated in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 at paragraph
14, there is, as a general common law principle, a duty of procedural fairness
lying on every public authority making an administrative decision which is not
of legislative nature and which affects the rights, privileges or interests of
an individual. In Knight v. Indian Head School Division No.
19,
[1990] 1 S.C.R. 653, the Court stated that the duty of fairness is flexible and
variable and depends on an appreciation of the context of the particular
statute and the rights affected.
[64]
The
Appellant states that in assessing the Crown’s claim for compensation and
making an offer pursuant to that assessment, the Administrator owed a duty to
the Crown to be procedurally fair. The decision was administrative in nature
and affected the rights, privileges or interests of Her Majesty the Queen in
the form of the right to compensation from the Fund pursuant to sections 85 and
86 of the MLA in respect of measures taken to prevent, repair, remedy or
minimize oil pollution damage from a ship.
[65]
The
amicus curiae admits that the Administrator owed the Appellant a duty of
fairness in the consideration of the Appellant’s claim, but submits that such a
duty of fairness did not extend to or encompass the disclosure of the results
of his own investigation or the “professional, technical and other advice and
assistance” that the Administrator obtained pursuant to section 81 of the MLA.
[66]
The
Appellant rightly submits that the right to procedural fairness means little or
nothing if an affected party is not entitled to know, at a minimum, the gist of
the proofs and the arguments submitted contrary to its position (see Kane
v. University of British Columbia, [1980] 1 S.C.R. 1105 at paragraph 36; Payne
v. Ontario Human Rights Commission, 192 D.L.R. (4th) 315 (Ont.
C.A.) at paragraph 156). Even if the Administrator followed a practice of not
disclosing the results of his investigation and providing a claimant the
opportunity to respond, I find that in this case it was unreasonable to
do so.
[67]
The
Appellant adds that the breach of procedural fairness concerning the
undisclosed evidence relied upon by a decision-maker is amplified when the evidence
is claimed to be expert evidence because the reliance upon undisclosed expert
evidence amounts to the taking of judicial notice (or official notice) of
matters that, by their very nature, are neither notorious nor capable of
immediate and accurate demonstration (see R. v. Find, [2001] 1 S.C.R.
863 at paragraphs 48 and 49). The amicus curiae submits that the company,
J.A. Murdoch & Company Ltd. (Murdoch), hired by the Administrator did not
give expert advice, but merely provided advice and assistance so that he could
carry out his investigative duties.
[68]
I
find that the Administrator should have disclosed the Murdoch report to the Appellant
before rendering its final decision. There would have been no prejudice to the Administrator
if he had done so. The Appellant should have had the opportunity to comment or to
respond to the Murdoch’s report because it affected its claim (see Tariku v.
Canada (Minister of
Citizenship and Immigration), 2007 FC 474, 67 Imm. L.R. (3d) 124).
E. What is the appropriate
remedy?
[69]
The
Court is not in a position to evaluate the reasonableness or adequacy of the
offer from the Administrator without having the benefit of the Appellant’s
submissions on the Murdoch report.
[70]
Therefore,
the appeal shall be allowed. The decision shall be quashed. The Administrator shall
give the Appellant the opportunity
to comment or to provide its arguments on
the Murdoch report regarding the reduction of its claim due to the Minister’s delay
in exercising his statutory powers. The Administrator shall make an offer of
compensation to the Appellant after having considered the Appellant's
arguments.
[71]
I
remain seized with this file.
V. Costs
[72]
In
its discretion, the Court will not grant costs.
JUDGMENT
THIS COURT
ORDERS that:
1. The
appeal be allowed. The Administrator of the Ship-source Oil Pollution Fund
decision dated March 21, 2006 is quashed.
2. The
Administrator of the Ship-source Oil Pollution Fund shall give the Appellant
the opportunity to comment or to provide its arguments on
the Murdoch report regarding the reduction of its claim due to the Minister’s delay
in exercising his statutory powers. The Appellant shall provide its
comments
or arguments to the Administrator no later than 30 days from the date of this
judgment.
3. The
Administrator of the Ship-source Oil Pollution Fund shall send an offer of
compensation to the Appellant after having considered the Appellant's comments
and arguments no later than 30 days after the delay mentioned in paragraph 2
above.
4. If
the Appellant is unsatisfied with the offer made by the Administrator, it may
ask the Judicial Administrator to set a date for a special sitting in Vancouver. Before
doing so, the parties shall, on consent, set a schedule for the remaining steps
to be completed before the hearing. Upon failure to do so, one of the parties
may ask for a teleconference with the Court to establish such a schedule.
5. No
costs are awarded.
“Michel
Beaudry”
ANNEX “A”
RELEVANT
LEGISLATION
Marine Liability Act: Liability for pollution and
related costs
|
51. (1)
Subject to the other provisions of this Part, the owner of a ship is liable
(a) for oil
pollution damage from the ship;
(…)
|
51. (1) Sous réserve des autres
dispositions de la présente partie, le propriétaire d’un navire est
responsable :
a)
des dommages dus à la pollution par les hydrocarbures causée par le navire;
(…)
|
|
|
|
|
|
|
|
|
|
Marine Liability Act: Claims filed with the
Administrator
|
85. (1)
In addition to any right against the Ship-source Oil Pollution Fund under
section 84, a person who has suffered loss or damage or incurred costs or
expenses referred to in subsection 51(1) in respect of actual or anticipated
oil pollution damage may file a claim with the Administrator for the loss,
damage, costs or expenses.
(2) Unless the
Admiralty Court fixes a shorter period under paragraph
92(a), a claim under subsection (1) must be made
(a) within two
years after the day on which oil pollution damage occurred and five years
after the occurrence that caused that damage, or
(b) if no oil
pollution damage occurred, within five years after the occurrence in respect
of which oil pollution damage was anticipated.
|
85. (1) En plus des droits qu’elle
peut exercer contre la Caisse d’indemnisation en vertu de l’article 84, toute
personne qui a subi des pertes ou des dommages ou qui a engagé des frais
mentionnés au paragraphe 51(1) à cause de dommages — réels ou prévus — dus à
la pollution par les hydrocarbures peut présenter à l’administrateur une
demande en recouvrement de créance à l’égard de ces dommages, pertes et
frais.
(2)
Sous réserve du pouvoir donné à la Cour d’amirauté à l’alinéa 92a), la
demande de recouvrement présentée en vertu du paragraphe (1) doit être faite
:
a)
s’il y a eu des dommages dus à la pollution par les hydrocarbures, dans les
deux ans suivant la date où ces dommages se sont produits et dans les cinq
ans suivant l’événement qui les a causés;
b)
sinon, dans les cinq ans suivant l’événement à l’égard duquel des dommages
ont été prévus.
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Marine
Liability Act:
Duties of Administrator
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86. (1)
On receipt of a claim under section 85, the Administrator shall
(a)
investigate and assess the claim; and
(b) make an
offer of compensation to the claimant for whatever portion of the claim the
Administrator finds to be established.
(2) For the
purpose of investigating and assessing a claim, the Administrator has the
powers of a commissioner under Part I of the Inquiries Act.
(3) In
investigating and assessing a claim, the Administrator may consider only
(a) whether
the claim is for loss, damage, costs or expenses referred to in subsection
85(1); and
(b) whether
the claim resulted wholly or partially from
(i) an act
done or omitted to be done by the claimant with intent to cause damage, or
(ii) the
negligence of the claimant.
(4) A claimant
is not required to satisfy the Administrator that the occurrence was caused
by a ship, but the Administrator shall dismiss a claim if satisfied on the
evidence that the occurrence was not caused by a ship.
(5) The
Administrator shall reduce or nullify any amount that the Administrator would
have otherwise assessed in proportion to the degree to which the
Administrator is satisfied that the claim resulted from
(a) an act
done or omitted to be done by the claimant with intent to cause damage; or
(b) the
negligence of the claimant.
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86. (1) Sur réception d’une
demande en recouvrement de créance présentée en vertu de l’article 85, l’administrateur
:
a)
enquête sur la créance et l’évalue;
b)
fait une offre d’indemnité pour la partie de la demande qu’il juge recevable.
(2)
Aux fins d’enquête et d’évaluation, l’administrateur a les pouvoirs d’un
commissaire nommé en vertu de la partie I de la Loi sur les enquêtes.
(3)
Dans le cadre de l’enquête et de l’évaluation, l’administrateur ne prend en
considération que la question de savoir :
a)
si la créance est visée par le paragraphe 85(1);
b)
si la créance résulte, en tout ou en partie :
(i)
soit d’une action ou omission du demandeur visant à causer un dommage,
(ii)
soit de sa négligence.
(4)
Bien que le demandeur ne soit pas tenu de démontrer que l’événement a été
causé par un navire, l’administrateur rejette la demande si la preuve le
convainc autrement.
(5)
L’administrateur réduit proportionnellement ou éteint la créance s’il est
convaincu que l’événement à l’origine de celle-ci est attribuable :
a)
soit à une action ou omission du demandeur visant à causer un dommage;
b) soit
à sa négligence.
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Marine Liability Act: Offer of compensation
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87. (2) A claimant may, within 60 days
after receiving an offer of compensation from the Administrator or a
notification that the Administrator has disallowed the claim, appeal the
adequacy of the offer or the disallowance of the claim to the Admiralty
Court, but in an appeal from the disallowance of a claim that Court may
consider only the matters described in paragraphs 86(3)(a) and (b).
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87. (2) Le demandeur peut, dans
les soixante jours suivant la réception de l’offre d’indemnité ou de l’avis
de rejet de sa demande, interjeter appel devant la Cour d’amirauté; dans le
cas d’un appel du rejet de la demande, la Cour d’amirauté ne prend en
considération que les faits mentionnés aux alinéas 86(3)a) et b).
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Navigable
Waters Protection Act:
Powers of the Minister
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16. If, in the opinion of the Minister,
(a) the
navigation of any navigable water over which Parliament has jurisdiction is
obstructed, impeded or rendered more difficult or dangerous by reason of the
wreck, sinking, partial sinking, lying ashore or grounding of any vessel or
part thereof or other thing,
(b) by reason
of the situation of any wreck, vessel or part thereof or other thing so
lying, sunk, partially sunk, ashore or grounded, the navigation of any such
navigable water is likely to be obstructed, impeded or rendered more
difficult or dangerous, or
(c) any vessel
or part thereof, wreck or other thing cast ashore, stranded or left on any
property belonging to Her Majesty in right of Canada is an obstacle or
obstruction to such use of that property as may be required for the public
purposes of Canada,
the Minister
may cause the wreck, vessel or part thereof or other thing to be removed or
destroyed, in such manner and by such means as the Minister thinks fit, if
the obstruction, obstacle, impediment, difficulty or danger continues for
more than twenty-four hours.
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16. Le ministre peut faire
enlever ou détruire, selon ses instructions, les épaves ou tout autre objet
résultant du naufrage d’un bateau qui a sombré, s’est échoué ou s’est jeté à
la côte et qui constituent un obstacle ou causent une obstruction qui
subsiste pendant plus de vingt-quatre heures s’il estime se trouver dans
l’une ou l’autre des situations suivantes :
a)
la navigation dans des eaux navigables de compétence fédérale est obstruée,
gênée ou rendue plus difficile ou dangereuse par le fait du bateau, de ses
épaves ou de tout autre objet;
b)
par suite de la position d’un débris ou du bateau ou de ses épaves ou de tout
autre objet, la navigation dans des eaux navigables de compétence fédérale
sera vraisemblablement obstruée, gênée ou rendue plus difficile ou
dangereuse;
c)
le bateau, ses épaves, débris ou tout autre objet jetés à la côte, échoués ou
laissés en un lieu appartenant à Sa Majesté du chef du Canada font obstacle
ou obstruction à l’utilisation du lieu à des fins publiques fédérales.
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Canada Shipping Act, R.S., c. 6 (3rd Supp.), s.
84
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678. (1) Where the Minister believes on
reasonable grounds that a ship has discharged, is discharging or is likely to
discharge a pollutant, the Minister may
(a) take such
measures as the Minister deems necessary to repair, remedy, minimize or
prevent pollution damage from that ship, including the removal or destruction
of the ship and its contents, and may sell or otherwise dispose of the ship
and its contents;
(b) monitor
the measures taken by any person to repair, remedy, minimize or prevent
pollution damage from the ship; or
(c) where the
Minister considers it necessary to do so, direct any person to take measures referred
to in paragraph (b), or prohibit any person from taking such measures.
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678. (1) Le ministre peut, s’il
a des motifs raisonnables de croire qu’un rejet de polluant ou un risque de
rejet est attribuable à un navire :
a)
prendre les mesures qu’il estime nécessaires pour prévenir, contrer, réparer
ou réduire au minimum les dommages, voire enlever ou détruire le navire et
son contenu, et disposer du navire et de son contenu;
b)
surveiller l’application de toute mesure prise par toute personne en vue de
prévenir, contrer, réparer ou réduire au minimum les dommages;
c) s’il
l’estime nécessaire, ordonner à toute personne de prendre les mesures visées
à l’alinéa b) ou lui interdire de les prendre.
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