Pollock v. Minister of Transport, [1974] SCR 749

Supreme Court of Canada

Pollock v. Minister of Transport, [1974] S.C.R. 749

Date: 1972-01-25

Robert James Pollock Appellant;

and

The Minister of Transport Respondent.

1971: December 8; 1972: January 25.

Present: Abbott, Martland, Ritchie, Hall and Pigeon JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Appeal—Collision between two ships—Decision by the court of investigation not to cancel or suspend the master’s certificate—No right of appeal by the Minister to the Exchequer Court—Canada Shipping Act, R.S.C. 1952, c. 29, s. 576(3)—Shipping Casualties Appeal Rules—Rules 3 and 6.

As the result of a collision between a ship under the command of appellant, and another ship, the Minister of Transport ordered an investigation in accordance with the Canada Shipping Act. He appointed for this purpose a Commissioner and two assessors, who decided inter alia not to cancel or suspend appellant’s master’s certificate, or otherwise deal with the point. A motion for an order striking out a notice of appeal by the Minister from this portion of the Commissioner’s decision was dismissed by the Exchequer Court of Canada in Admiralty. Hence the appeal to this Court.

Held: The appeal should be allowed.

Under the terms of s. 576(1) of the Act, the Minister is required to order a re-hearing of a decision by a court of investigation only if in his opinion there were grounds for suspecting a miscarriage of justice. Where the Minister has made such an order he may exercise his discretion in accordance with s. 576(2). However, there is no provision in the Canada Shipping Act or the Shipping Casualties Appeal Rules for an appeal to the Admiralty Court, except when a decision has been given with respect to the cancellation or suspension of a certificate, and then only when an application for a re-hearing has not been made or has been refused.

Further, by virtue of the provisions of Rules 3(1) and (2) of the Shipping Casualties Appeal Rules the words “an application for re-hearing”, used in s. 576(3) of the Canada Shipping Act, mean that the right to so apply is limited to parties to the formal investigation other than the Minister, and that the

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right to appeal which is consequent upon failure to make such an application or refusal to grant it, is a right which is conferred upon the person whose certificate has been suspended by the Court’s order.

With regard to the authority before whom the hearing of an appeal must take place, it is clear under Rule 6 of the Shipping Casualties Appeal Rules that there is a fundamental difference between the re-hearing and the appeal contemplated by s. 576, in that a re-hearing is held before a commissioner and two assessors appointed by the Minister and an appeal is heard by the Admiralty Court.

APPEAL from a judgment of the Exchequer Court of Canada[1] dismissing a motion for an order. Appeal allowed.

T. Cameron, for the appellant.

P.M. Troop, Q.C., and Guy Major, for the respondent.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Exchequer Court of Canada in Admiralty, as it was then designated, dismissing the appellant’s motion for an order striking out a notice of appeal of the Minister of Transport from that part of the decision of the formal investigation herein whereby the Commissioner, with the concurrence of two assessors decided not to cancel, suspend or otherwise deal with the appellant’s master’s certificate.

President Jackett (as he then was) with the concurrence of Mr. Justice Thurlow, concluded that the decision made by the Court holding the formal investigation not to cancel, suspend or otherwise deal with the certificate of the appellant, constituted a decision “with respect to the cancelling or suspension of the certificate of a master” and that the Minister is a party to the investigation who is entitled to appeal from such a decision under the provisions of s. 576(3) of the Canada Shipping Act, R.S.C. 1952 (Can.),

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ch. 29 because, in his capacity as a representative of “the public” he has been aggrieved thereby. Mr. Justice Noël, on the other hand, in the course of his dissenting reasons for judgment, concluded that the Minister was not accorded any right of appeal from such a decision.

The present case arises out of a formal investigation into the circumstances which led to the collision of the MV QUEEN OF VICTORIA with the MV SERGEY YESENIN in Active Pass, B.C., on August 2, 1970.

The Minister appointed His Honour Judge E.J.C. Stewart as the Commissioner to hold the investigation. He also appointed two duly qualified assessors to assist him, and after hearing evidence for 29 days, the learned Commissioner, with the concurrence of both assessors, decided not to deal with Captain Pollock’s certificate for the following reasons:

The case of Captain R.J. Pollock has given the Court difficulty. There is no doubt that his wrongful act and default were sufficiently culpable to justify dealing with his certificate. At the same time it should be noted that his was a momentary lapse from an acceptable standard of seamanship, occurring at a time when he must have been lulled into a false sense of security by the radio telephone messages by “Queen of Esquimalt.”

That Captain Pollock’s last desperate hard aport action lessened the effect of the collision by narrowing the angle of impact is a reasonable conclusion on the evidence. It will never be known whether this was the object of the manoeuvre but it should be considered as an extenuating circumstance.

Captain Pollock’s conduct after the collision cannot be taken into account in considering whether to deal with his certificate because it in no way contributed to the damage to the vessel or to the loss of life.

Captain Pollock was 57 years of age at the time of the hearing and obviously under great strain, making him appear older than his stated years. He has 36 years’ experience at sea, some of it in the Royal Canadian Navy, during the war in the marine section of the Royal Canadian Air Force, and thereafter in the home

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trade, as a mate in 1948 and as a master from 1953. He has been a master with British Columbia Ferries since 1963, taking command of “Queen of Victoria” almost 2 years ago. I know of no previous difficulty.

On the concluding day of the hearings it was announced that Captain Pollock was suspended by his employer. Without in any way criticizing that action I regard it as a penalty already imposed. He may well find that the black mark caused by this accident may prevent reinstatement in his previous, or similar command.

Captain Pollock has already suffered great punishment. Under all the circumstances this Court has a serious doubt that a suspension of his certificate will in any way benefit the public or serve any useful purpose. The Court has therefore decided not to deal with his certificate.

Twenty-seven days after the decision was rendered in open court, the Minister of Transport issued what purported to be a notice of appeal from that part of the Commissioner’s decision “whereby he decided that the certificate of the said Captain James Pollock should not be cancelled or suspended as a consequence of wrongful acts or defaults of him causing serious damage to ships and loss of life…”.

Although a number of the sections of Part VIII of the Canada Shipping Act dealing with formal investigations ordered by the Minister into shipping casualties have been set out at length in the reasons for judgment of the learned President of the Exchequer Court, I nevertheless find it necessary to reproduce those sections which I consider strictly relevant to the question of the power of a formal court of investigation to order the cancellation or suspension of a master’s certificate and the provisions for appeal from such an order. In this regard s. 568 reads as follows:

568. (1) The certificate of a master, mate, or engineer, or the licence of a pilot may be cancelled or suspended

(a) by a court holding a formal investigation into a shipping casualty under this Part, or by a naval

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court constituted under this Act, if the court finds that the loss or abandonment of, or serious damage to, any ship, or loss of life, has been caused by his wrongful act or default, but the court shall not cancel or suspend a certificate unless one at least of the assessors concurs in the finding of the court;

(b) by a court holding an inquiry under Part II or under this Part into the conduct of a master, mate, or engineer, if it finds that he is incompetent, or has been guilty of any gross act of misconduct, drunkenness, or tyranny, or that in a case of collision he has failed to render such assistance or give such information as is required under Part XIV; or…

(5) Where any case before any such court as aforesaid involves a question as to the cancelling or suspending of a certificate, that court shall, at the conclusion of the case or as soon afterwards as possible, state in open court the decision to which it has come with respect to the cancelling or suspending thereof.

The provisions respecting re-hearing and appeal in such cases are contained in s. 576(1) (2) and (3) where it is enacted that:

576. (1) In any case where a formal investigation has been held, the Minister may order the investigation to be re-heard, either generally or as to any part thereof; and he shall so order

(a) if new and important evidence that could not be produced at the investigation has been discovered, or

(b) if, for any other reason, there has been in his opinion ground for suspecting that a miscarriage of justice has occurred.

(2) The Minister may order the case to be re-heard by the court by which the case was heard in the first instance, or may appoint another commissioner and select the same or other assessors to re-hear the case.

(3) Where on any such investigation a decision has been given with respect to the cancelling or suspension of the certificate of a master, mate, or engineer, or the licence of a pilot, and an application for a re-hearing under this section has not been made or has been refused, an appeal lies from the decision to the Admiralty Court.

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Counsel for the Minister seeks to establish, as he successfully did before the Exchequer Court, that s. 576 (3) read in the context of the statute as a whole, affords to the Minister a right of appeal in his public capacity as a person who is aggrieved by the decision not to deal with the appellant’s certificate. It appears to me to be of fundamental importance to recognize at the outset that the construction of a statutory provision which is alleged to create a right of appeal is governed by fixed and well-known principles which have been most succinctly stated by Fauteux J., as he then was, speaking on behalf of the majority of this Court in Welch v. The King[2], where he said:

The right of appeal is an exceptional right. That all the substantive and procedural provisions relating to it must be regarded as exhaustive and exclusive, need not be expressly stated in the statute. That necessarily flows from the exceptional nature of the right.

I am accordingly of opinion that unless it can be found that the Canada Shipping Act provides for an appeal by the Minister by express words or necessary implication, no such appeal exists.

It is difficult to conceive of a case in which the Minister would be justified in seeking to have the decision of the investigating court reviewed unless he was of opinion that there was ground for suspecting that a miscarriage of justice had occurred and certainly the notice of appeal in the present case alleging eight grounds of error in the decision could only be supported on the ground that such a miscarriage had occurred. It is, however, clear from the terms of s. 576(1) that in such a case the Minister is required to order a re-hearing of such an investigation. The language of the section does not afford the Minister any discretion if he is of such opinion; the words of the statute are “he shall so order”.

In a case where the Minister has ordered a re-hearing in accordance with s. 576(1), he may

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exercise his discretion in accordance with s. 576(2) in determining whether the re-hearing is to be before the court which has heard the case in the first instance, or another commissioner and other assessors. There is no provision for a re-hearing before the Admiralty Court although the Minister can no doubt appoint a member of that Court to sit as a commissioner.

Section 576(3) on the other hand, deals specifically with a decision with respect to the “cancellation or suspension of the certificate of a master, mate or engineer or the licence of a pilot” and in such case it is only where no application has been made for a re-hearing or if an application has been refused that “an appeal lies from the decision to the Admiralty Court”. In this regard, I agree with Mr. Justice Noël where he says in the course of his dissenting reasons for judgment:

There is, however, nothing in subsection (3) that clearly gives the Minister a right of appeal from a decision of the Commissioner refusing to cancel or suspend a licence. The language indeed used in subsection (3) that an appeal lies ‘with respect to the cancellation or suspension of the certificate of a master, mate or engineer, or the licence of a pilot’ could, and, in my view does mean only when a certificate has actually been cancelled or suspended.

I do not think that the words “with respect to the cancellation or suspension of the certificate” can be read as referring to a decision not to deal with the certificate at all. With the greatest respect for the learned President, I am unable to find anything in the language of s. 568(5) which alters this construction because the requirement of that section that the court shall “state in open court the decision to which they have come with respect to cancelling or suspending” a certificate may well refer to the decision as to whether the certificate will be cancelled altogether or whether it is merely to be suspended, and if so, for how long.

The provisions of rule 3(1) and (2) of the Shipping Casualties Appeal Rules made by

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order-in-council pursuant to s. 578 of the Canada Shipping Act serve to clarify what is meant by “an application for re-hearing” as those words are used in s. 576(3). The rule provides:

3. (1) Where a formal investigation has been held, any party thereto may make application to the Minister for an order that the investigation be re-heard, either generally or as to any part thereof.

(2) An application under this section shall be made to the Minister within twenty-eight days of the statement in open court of the decision of the court or of the receipt of such decision by the Minister.

It is thus clear that “an application for re-hearing” under s. 576(3) means an application to the Minister, and as I share the view of Mr. Justice Noël that it would be absurd to hold that the Act contemplates the Minister making an application to himself, I can only conclude that the right so to apply is limited to other parties to the formal investigation and that the right to appeal which is consequent upon failure to make an application or refusal to grant it, is a right which is conferred upon the person whose certificate has been suspended by the Court’s order. It is true that s. 576(3) does not specifically state that it confers a right of appeal on a master whose certificate has been cancelled or suspended, but there is no doubt that it makes provision for an appeal and with all respect, it appears to me to be highly illogical to read the subsection as meaning that a Minister who has failed to order a re-hearing as he is required to do by s. 576(1) or has refused to grant an application for re-hearing, is a person to whom the right of appeal under s. 576(3) is accorded.

The learned President in the Court below appears to have based his reasoning in large degree upon the fact that the Minister “represents the public in this matter” and that as such he is a person aggrieved by the decision not to deal with appellant’s certificate. In this regard, President Jackett says:

I have no doubt, therefore, that the words of the appeal provision are wide enough to authorize an

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appeal. My difficulty is in determining who is authorized by Section 576(3) to appeal from such a decision. On that question the subsection is silent.

Obviously, where an appeal provision is silent on the point, the persons aggrieved by a decision are the persons who may appeal. Section 576(3) therefore confers a right of appeal on a person whose certificate has been cancelled or suspended. The question is whether, on the facts of this case, the Minister is a person who may be said to have been aggrieved by the decision with respect to the cancelling or suspension of the certificate so as to have the right to appeal created by Section 576(3).

The Minister certainly occupies a special position under the Canada Shipping Act in relation to the system of certificated officers. He is the authority by whom certificates are granted and he has the duty and authority to institute inquiries where he has reason to believe that certificates are held by persons who are incompetent or unfit and, after certain such inquiries, he is the authority by whom a certificate may be cancelled or suspended.

The learned President then continued:

In addition to the rules already quoted whereby the Minister is made a party to such an investigation, the rules impose on the Minister’s department the primary responsibility for adducing evidence and authorize that department ‘to address the Court in reply upon the whole case.’ By these rules, as it seems to me, the Governor in Council has, in the exercise of the powers contained in Section 578, imposed on the Minister a new role in connection with formal investigations. Being a Minister of the Crown who is thus charged with the most prominent position as a party in the investigation, he becomes the party who ‘represents the public in this matter.’

And the learned President concludes:

As he represents ‘the public’ in the matter, if the decision of the Court with respect to the cancelling or suspension of a master’s certificate is wrong, in my view the Minister, on behalf of ‘the public’ is a party aggrieved thereby.

In considering the difficulty experienced by the learned President in determining who is authorized by s. 576(3) to appeal from such a decision, I find great assistance in reading the judgment of the President of the Probate, Divorce, and Admiralty Division of the High Court of Justice in England in The Golden

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Sea[3], where he was considering the 2nd section of the Shipping Casualty Investigations Act, 1879 42-43 Vict. Ch. 72 which I am bound to say appears to me to have been a precursor of s. 576(3). Sir James Hannen there said:

The appeal to this division is given by the Shipping Casualty Investigations Act, 1879. By the 2nd section of that Act it is enacted, first, that ‘where an investigation into the conduct of a master, mate, or engineer, or into a shipping casualty has been held … the Board of Trade may in any case, and shall’ in certain cases, order the cause to be reheard; secondly, that ‘where in any such investigation a decision has been given with respect to the cancelling or suspension of the certificate of a master, mate, or engineer, and an application for a rehearing has not been made, or has been refused, an appeal shall lie from the decision.’ We are of opinion that the clear meaning of these words is, that the decision from which an appeal is allowed is a decision with respect to the cancelling or suspension of the certificate, and not any other decision. If the reason of the enactment is considered, it confirms the view we take of the construction of that section. The decision of the Wreck Commission may deprive the master of the means of earning his livelihood. It was thought fit, therefore, to give the master a right of appeal. If it had been intended to give the owner a right of appeal we cannot conceive any reason why it should be made to depend on whether the master’s certificate had been dealt with, for the injury inflicted on the owner by an erroneous decision is the same, whether the master is found to blame or not.

With the greatest respect for the views expressed by the learned President, I am unable to conclude that it is necessarily to be inferred that the public or any member thereof has been “aggrieved” by the failure of the Court of investigation to deal with the certificate and I find nothing in the record to sustain such an inference nor do I think that in all cases where an appeal provision is silent as to who is intended to be authorized to appeal, it necessarily follows that a right of appeal is conferred on all persons aggrieved by a decision. Indeed, it appears to me that when a right of appeal is given to all persons who feel aggrieved by a decision, it is

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given by express statutory language, and this is certainly true of Part VIII of the Canada Shipping Act where provision is made by section 530 for an appeal to the Minister from an award made by the receiver of wrecks. The opening words of that section read:

530. Any party who feels aggrieved by the award of such receiver may appeal to the Minister, within thirty days after the decision…

I am nonetheless in agreement with the learned President that the Minister is made a party to the proceedings at the formal investigation (see Rule 8 of the Shipping Casualties Appeal Rules) and I agree with Mr. Justice Thurlow that to the extent that he is responsible for “general superintendence of all matters relating to … shipping casualties” (s. 496 of the Canada Shipping Act) the Minister, in his public capacity, might be said to be a person interested in a decision “given with respect to the cancellation or suspension of a master’s certificate”.

It is my view, however, that the public interest is more than adequately protected by the powers and duties conferred and imposed on the Minister under the Canada Shipping Act. With the greatest respect it does not appear to me to be appropriate to describe as “a party aggrieved” the Minister who appointed the Court and its assessors and who neglected to order a re-hearing in accordance with the statutory requirements applicable wherever “there has been in his opinion ground for suspecting that a miscarriage of justice has occurred”.

The remedy provided under the Canada Shipping Act and the Shipping Casualties Appeal Rules in the case of any party affected by the decision of a formal investigation, is to make application to the Minister for an order that the investigation be re-heard (see rule 3(1)), but there is no provision for an appeal to the Admiralty Court except when a decision has been given with respect to the cancellation or suspension of a certificate and then only when an

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application for a re-hearing has not been made or has been refused.

Rule 6 of the Shipping Casualties Appeal Rules directs that the provisions of Rules 11 to 16 inclusive which deal with the procedure at the hearing of an appeal, “apply to a re-hearing as if it were an appeal and as if the court or authority before whom the re-hearing takes place were the Exchequer Court” and this language has given rise to the suggestion that any distinction between an appeal and a re-hearing under 576 is one of form rather than substance so that the notice of appeal served by the Minister in the present case may be treated as if it were an order for a re-hearing.

In this regard I think it sufficient to note two fundamental differences between the re-hearing and the appeal contemplated by s. 576:

1. The provision for a re-hearing of the investigation is that the Minister may order it “to be re‑heard either generally or as to any part thereof”, while the appeal is limited to that part of the decision dealing with the cancelling or suspension of a certificate.

2. Cancellation or suspension of a certification is the only question with respect to which the Admiralty Court is given any jurisdiction in relation to the re-assessment of the finding of a formal investigation.

It is thus clear that while the procedure for hearing the matter is the same on a re-hearing and an appeal, and while the court before whom the re-hearing takes place is to be treated for procedural purposes as if it were the Exchequer Court, there is nonetheless a fundamental difference between the two types of review in that a re-hearing is held before a commissioner and two assessors appointed by the Minister and an appeal is heard by the Admiralty Court.

For all these reasons, I am unable to conclude that there are any substantive or procedural provisions under the Canada Shipping Act which accord to the Minister a right to appeal in

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a case where a court holding a formal investigation into a shipping casualty decides not to deal with the certificate of a master.

It therefore follows, in accordance with the principles referred to in Welch v. The King, supra, that the Minister of Transport has no right of appeal herein and that his notice of appeal should be struck out.

I would accordingly allow the appeal with costs.

Appeal allowed with costs.

Solicitors for the appellant: McMaster, Bray, Mair, Cameron & Jasich, Vancouver.

Solicitor for the respondent: D.S. Maxwell, Ottawa.