A-501-04
2005 FCA 221
Laurentian Pilotage Authority (Appellant/Plaintiff)
v.
Gestion C.T.M.A. Inc. and Navigation Madeleine Inc. and The Owners and Others Having an Interest in the Ship C.T.M.A. Voyageur (Respondents/ Defendants)
and
Corporation des Pilotes du Bas Saint-Laurent (Intervener)
Indexed as: Laurentian Pilotage Authority v. Voyageur (The) (F.C.A.)
Federal Court of Appeal, Desjardins, Décary and Pelletier JJ.A.--Montréal, May 31; Ottawa, June 10, 2005.
Maritime Law -- Pilotage -- Appeal from Federal Court's dismissal of action claiming $1,860,265.34 in unpaid pilotage charges on ship Voyageur between 1987 and 2002 -- Federal Court determining charges owing re: three years immediately before commencement of action not prescribed under three-year prescriptive period but dismissing action in entirety due to insufficiency of evidence -- Pilotage Act, s. 44 providing pilotage charges payable by ship subject to compulsory pilotage except where Authority waiving compulsory pilotage -- Agent of ship jointly and severally liable to pay charges under s. 42 -- Action against Gestion C.T.M.A. Inc., management company and sole shareholder of Navigation Madeleine Inc., dismissed -- Not "agent of ship" within meaning of s. 42 -- Appellant having power under s. 20(1)(c) to make regulations regarding waiver of compulsory pilotage charges -- "Waiver" within meaning of Act, s. 44 significant exception and only existing in circumstances prescribed in regulations made under s. 20(1)(c) -- Defence of waiver of compulsory pilotage charges based on exchange of letters suggesting Voyageur not subject to compulsory pilotage except in emergency, distress situations -- Appellant must know ship subject to compulsory pilotage to grant waiver -- No reason for appellant to exempt Voyageur from charges since thinking ship not subject to compulsory pilotage -- Federal Court finding exchange of correspondence between appellant, pilots and pilots' associations regarding use of pilotage services perpetuating misunderstanding over ship's actual net tonnage -- Parties convinced Voyageur not subject to compulsory pilotage regardless of context of exchange of correspondence.
Civil Code -- Civil Code of Québec, Art. 2904 suspending prescription if impossible for person to act -- Federal Court concluding appellant not demonstrating impossible for it to determine true net tonnage of ship Voyageur owing to respondents' negligence -- Exchange of correspondence between appellant and respondents regarding ship's use of pilotage services indicating appellant satisfied Voyageur not subject to compulsory pilotage decisive factor in Court's conclusion -- No evidence respondents engaging in deceitful manoeuvres to conceal ship's actual net tonnage -- Respondents' "fault" in failing to pay charges not to be confused with "fault" leading to suspension of prescription under Art. 2904 -- Art. 2925 providing for prescription of action to enforce "personal right" -- "Personal right" consisting of person's ability to require from another person advantage that is subject-matter of obligation -- Personal right customarily referred to as "claim" and obligation as "debt" -- Nature of "personal right" not altered by source (i.e. statutory, regulatory, contractual, customary) -- Pilotage Act, s. 44 regarding payment of penalty not falling outside scope of Art. 2925 C.C.Q. -- Applicable prescriptive period of action three years -- Pilotage charges owing beyond three years before commencement of action prescribed.
This was an appeal from a Federal Court decision dismissing the appellant's action regarding a claim for $1,860,265.34 in unpaid pilotage charges on the ship Voyageur between 1987 and 2002. The appellant relied on Pilotage Act, section 44 which provides that pilotage charges are payable by a ship subject to compulsory pilotage, except where an Authority waives compulsory pilotage. The respondents raised three defences: the appellants had the option to sue one of the respondents Gestion C.T.M.A. Inc.; the appellant had granted the Voyageur a waiver in 1992; and the appellant's action was prescribed by Article 2925 of the Civil Code of Québec. Although the Federal Court accepted the Authority's argument that charges owing for the three years before the action was commenced (March 2000) were not prescribed, it dismissed the action in its entirety because it considered that the evidence regarding the unpaid charges that were not prescribed was insufficient.
Held, the appeal should be allowed.
Section 42 provides in part that the agent of a ship is jointly and severally liable to pay any pilotage charges. The respondent C.T.M.A. Inc. was not an "agent of a ship" within the meaning of section 42 since it was not an entity representing a ship for certain purposes. Gestion C.T.M.A. Inc., a management company, is simply the sole shareholder of the defendant Navigation Madeleine Inc., which is the sole owner of the ship in question. Even though the captain of the Voyageur sometimes wrote Gestion C.T.M.A. in the "agent" box when completing the pilotage cards, there was no evidence demonstrating that it was comparable to an "agent" within the meaning of section 42. The action brought against Gestion C.T.M.A. Inc. was therefore dismissed.
The "waiver" referred to in section 44 of the Act is not defined in the Act and elsewhere is only found in paragraph 20(1)(c), which gives the appellant the power to make regulations regarding the waiver of compulsory pilotage. The argument that the appellant had waived the compulsory pilotage was based on an exchange of letters suggesting that the Voyageur was not subject to compulsory pilotage except in emergency or distress situations. A "waiver" within the meaning of section 44 of the Act can only exist in the circumstances prescribed in a regulation made under paragraph 20(1)(c). A "waiver" of compulsory pilotage is a significant exception to the application of an Act, the primary objective of which is to secure "the interests of safety" and the Court should not go beyond what section 5 of the Laurentian Pilotage Authority Regulations allows. To grant a waiver, the appellant must know that a ship is subject to compulsory pilotage. In this case, since the appellant thought the ship was not subject to compulsory pilotage, there would have been no reason for it to exempt the Voyageur from charges it did not have to pay.
The relevant articles of the Civil Code of Québec regarding prescription were Articles 2904, 2922 and 2925. Under Article 2904 C.C.Q., prescription is suspended if it is impossible for the person to act. The Federal Court concluded that the appellant had failed to demonstrate that it had been impossible for it to act. The Judge was properly apprised of the law and the conclusion he reached was one of fact. He noted correctly that prescription is suspended where the impossibility to act results from the fault of the debtor of the obligation and, after carefully examining the evidence, concluded that is was not impossible for the appellant to determine the true net tonnage of the Voyageur. The decisive factor was apparently the exchange of correspondence between the appellant and the respondents indicating that the appellant was satisfied that the Voyageur was not subject to compulsory pilotage during the period in dispute. The respondents did not engage in deceitful manoeuvres to conceal from the appellant, the pilots and the pilots' corporations the ship's actual net tonnage. The captain of the ship used pilotage services until the appellant informed him that these services would only be provided in cases of emergency or distress situations. Based on the evidence, the Judge found that there was a misunderstanding over the actual net tonnage from the outset and that this misunderstanding, through an exchange of correspondence regarding the use of pilotage services, was perpetuated by the appellant, the pilots and the pilots' associations. They were all convinced that the Voyageur was not subject to compulsory pilotage and the respondents, who knew they were in theory subject to it because of the ship's net tonnage, thought they were being exempted. In reaching its conclusion, the Federal Court based itself on evidence that allowed it to draw the inferences that it drew. Moreover, the "fault" of the respondents in failing to pay the charges because of the actual net tonnage of the ship was not to be confused with the "fault" leading to the suspension of the prescription, for which there was insufficient evidence.
The general rule regarding prescription of an action to enforce a "personal right" is found in Article 2925 C.C.Q. The concept of "personal right" is clearly established in civil law and consists of a person's ability to require from another person an advantage that is the subject-matter of the obligation. The personal right is customarily referred to as a claim and the obligation as a debt. The fact that an obligation is statute-based in no way alters its personal nature. It is the nature of the right that is exercised that must be examined, not its source, which may be statutory, regulatory, contractual, customary, etc. Section 44 of the Act regarding the payment of a penalty is not of a penal nature and does not go beyond the scope of Article 2925 C.C.Q. The liability established in section 44 is not different from the one established in section 42. Since the applicable prescriptive period is three years, the pilotage charges owing more than three years before the action was commenced (March 31, 2003) were prescribed and could not be claimed.
Finally, the Judge erred in not accepting the appellant's request to allot some time for the parties to make submissions regarding the quantum of the claim for the last three years and the respondents' request to order the discharge from seizure.
statutes and regulations judicially
considered
Civil Code of Québec, S.Q. 1991, c. 64, Arts. 2904, 2922, 2925.
| Companies Act, R.S.Q., c. C-38. |
| Pilotage Act, R.S.C., 1985, c. P-14, ss. 18, 20(1)(c), 40, 42, 44. |
| Laurentian Pilotage Authority Regulations, C.R.C., c. 663, s. 5. |
cases judicially considered
considered:
A/S Ornen v. Duteous (The), [1987] 1 F.C. 270; (1986), 4 F.T.R. 122 (T.D.); Gauthier v. Beaumont, [1998] 2 S.C.R. 3; (1998), 162 D.L.R. (4th) 1; 228 N.R. 5.
referred to:
Western Great Lakes Pilots' Assn. (District 3) v. Navitrans Shipping Agencies Inc. (2002), 223 F.T.R. 283; 2002 FCT 915; Giguère c. Parenteau, [1990] R.D.J. 598 (Que. C.A.); Chouinard c. Centre hospitalier St. Mary's, [2002] R.J.Q. 12; [2002] R.R.A. 27 (Que. C.A.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235; (2002), 211 D.L.R. (4th) 577; [2002] 7 W.W.R. 1; 10 C.C.L.T. (3d) 157; 30 M.P.L.R. (3d) 1; 286 N.R. 1; 219 Sask. R. 1; 2002 SCC 33; Longpré c. Gouin, [2003] R.J.Q. 1459 (Que. C.A.); Pires c. Zaccheo, [1998] R.J.Q. 2973 (Que. C.A.); Nadeau c. Nadeau, [1999] R.L. 330 (Que. C.A.); Basil Holding Corp. c. Côte St-Luc (Ville), [1998] R.L. 661 (Que. Sup. Ct.); Commission des normes du travail c. Perreault, J.E. 2002-2144 (C.Q.).
authors cited
Mignault, P. B. Droit civil canadien, tome II. Montréal: Librairie de droit et de jurisprudence, 1896.
Tancelin, Maurice et Daniel Gardner. Jurisprudence commentée sur les obligations, 8e éd. Montréal: Wilson & Lafleur, 2003.
APPEAL from a Federal Court decision ((2004), 258 F.T.R. 210; 2004 FC 939) dismissing the appellant's action for unpaid pilotage charges on the ship Voyageur on the ground that the claim made was prescribed and that there were insufficient particulars to decide whether, during the years when the Voyageur was operating, there were unpaid pilotage charges that were not prescribed. Appeal allowed.
appearances:
Guy P. Major for appellant.
Francis Gervais for respondents.
solicitors of record:
Guy P. Major, Montréal, for appellant.
Deveau, Lavoie, Bourgeois, Lalonde & Associés, S.E.N.C., Laval, for respondents.
The following is the English version of the reasons for judgment rendered by
[1]Décary J.A.: The Laurentian Pilotage Authority (the appellant or the Authority) is claiming from the respondents the sum of $1,860,265.34 for unpaid pilotage charges on the ship Voyageur between 1987 and 2002. The Authority relies on section 44 of the Pilotage Act [R.S.C., 1985, c. P-14], which reads as follows:
44. Except where an Authority waives compulsory pilotage, a ship subject to compulsory pilotage that proceeds through a compulsory pilotage area not under the conduct of a licensed pilot or the holder of a pilotage certificate is liable, to the Authority in respect of which the region including that area is set out in the schedule, for all pilotage charges as if the ship had been under the conduct of a licensed pilot.
[2]The respondents have argued three defences: the first, on which the Federal Court Judge did not rule (apparently because of the ultimate conclusion he reached to dismiss the action), involves the Authority's option to sue one of the respondents, Gestion C.T.M.A. Inc.; the second has to do with the waiver which, in their opinion, had been granted to the Voyageur by the Authority in 1992; the third relies on the three-year prescription in Article 2925 of the Civil Code of Québec [S.Q. 1991, c. 64] (the Code or C.C.Q.).
[3]Mr. Justice Lemieux, of the Federal Court, dismissed the Authority's argument based on the waiver, but he accepted the one based on the three-year prescription [Laurentian Pilotage Authority v. Gestion C.T.M.A. Inc. (2004), 258 F.T.R. 210]. Although this conclusion, prima facie, means that the action must be allowed in part (i.e. in respect of the last three of the fifteen years in dispute), the Judge dismissed it in its entirety, using the following language (at paragraph 90):
For all these reasons, the plaintiff's action is dismissed with costs on the ground that the claim made is prescribed. The Court did not receive sufficient particulars to decide whether during the years when the Voyageur was operating there were unpaid pilotage charges that were not prescribed. I invite the parties to contact the Court on this point, if necessary.
[4]The same arguments were made before us, some in the context of a cross-appeal filed by the respondents which, in my opinion, was not really necessary. A new argument was advanced by the appellant in relation to the costs.
[5]I will address the arguments in the aforesaid order.
Status of Gestion C.T.M.A. Inc.
[6]Because the captain of the Voyageur, when sometimes completing the pilotage cards, wrote Gestion C.T.M.A. Inc. in the "agent" box, the Authority argues that Gestion C.T.M.A. Inc. is jointly and severally liable for pilotage charges under section 42 of the Act, which reads:
42. The owner, master and agent of a ship are jointly and severally liable to pay any pilotage charges.
[7]This argument is without merit. The "agent of a ship", within the meaning of this section, refers to the entity which, in maritime terminology, represents a ship for certain purposes. In A/S Ornen v. Duteous (The), [1987] 1 F.C. 270 (T.D.), at pages 291-292, Mr. Justice Dubé adopted the following definition of "ship's agent":
A basic definition of a ship's agent is provi ded by Pearson L.J. in Blandy Brothers & Co., Lda. v. Nello Simoni, Ltd. [at page 404]:
| The ship's agent is, in the normal case, the agent of the shipowner at the particular port, and the ship's agent, therefore, at that port stands in the shoes of the sh ipowner; and it is reasonable to suppose that he has the authority to do whatever the shipowner has to do at that port. |
(see, also, Western Great Lakes Pilots' Assn. (District 3) v. Navitrans Shipping Agencies Inc. (2002), 223 F.T.R. 283 (F.C.T.D.), Prothonotary Morneau).
[8]Gestion C.T.M.A. Inc., a management company, is simply the sole shareholder of the defendant Navigation Madeleine Inc., which is the sole owner of the ship in question. No evidence was submitted tending to demonstrate that it is comparable to an "agent" within the meaning of section 42.
[9]The action brought against Gestion C.T.M.A. Inc. should therefore be dismissed, irrespective of the Court's findings on the other issues.
The waiver
[10]The "waiver" ("dispense" in the French text) referred to in section 44 of the Act is nowhere defined in the Act, and in fact is found elsewhere in the Act only in paragraph 20(1)(c), which gives the Authority the power to make regulations "prescribing the circumstances under which compulsory pilotage may be waived".
[11]In the Laurentian Pilotage Authority Regulations, C.R.C., c. 1268, section 5 has identified three situations in which a waiver may be allowed:
5. (1) The authority may waive compulsory pilotage of any ship
(a) that is to arrive in, depart from or make a movage within the compulsory pilotage area if her owner, master or agent has complied with section 6, 7, 8, 9 or 10, whichever is applicable, and no licensed pilot is available to perform pilotage duties at the time of her arrival, departure or movage, as the case may be, or
(b) in respect of which one or more licensed pilots refuse to perform pilotage duties, except where the Authority regards the ship as unsafe.
(2) Notwithstanding subsection (1), the Authority may waive compulsory pilotage of a ship that is in distress, proceeding to a ship in distress or entering the compulsory pilotage area for refuge.
[12]In the case at bar, the "waiver" is alleged to result from a series of letters, one of which is dated June 22, 1992, sent to the respondents by the Authority, and which reads as follows (A.R., Vol. 1, at page 134):
[translation] We have been informed by the president of the Corporation of Mid St. Lawrence Pilots, Jean-Pierre Leroux, that we should no longer dispatch pilots to the ship CTMA Voyageur, since it is not subject to compulsory pilotage except in emergency or distress situations.
[13]The respondents acknowledge that this exchange of letters, which suggests that the Voyageur is not subject to compulsory pilotage except in emergency or distress situations, does not fall within the framework of the situations described in section 5 of the Regulations. They argue, however, that section 5 does not exhaust all possible forms of "waiver" and that the exchange of letters amounts to a new form of waiver.
[14]This is not my opinion. There can be a "waiver", within the meaning of section 44 of the Act, only in the situations covered in a regulation adopted under paragraph 20(1)(c). A "waiver" of compulsory pilotage is a significant exception to the application of an Act the primary objective of which is to secure "the interests of safety" (section 18 of the Act), and the Court ought not to go beyond what is allowed by section 5 of the Regulations.
[15]To grant a "waiver", the Authority must know that a ship is subject to compulsory pilotage. In this case, since the Authority thought the ship was not subject to compulsory pilotage, there would have been no reason for it to exempt the Voyageur from charges that it did not have to pay.
The prescription
[16]The relevant articles of the Civil Code of Québec are Articles 2904, 2922 and 2925. Although the claim in this case covers certain periods governed by the Civil Code of Lower Canada, it was not argued that the differences in language between the articles in the old Code and those in the new Code had any impact on the outcome of this litigation and I will discuss here only the articles in the new Code:
Art. 2904. Prescription does not run against persons if it is impossible in fact for them to act by themselves or to be represented by others.
. . .
Art. 2922. The period for extinctive prescription is ten years, except as otherwise fixed by law.
. . .
Art. 2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established.
[17]The appellant argues that prescription is in its case suspended under Article 2904 C.C.Q. because it would have been impossible for it to take earlier action owing to the respondents' negligence. If prescription is not suspended in its case, the appellant claims it is the ten-year prescription established in Article 2922 C.C.Q. that applies, and not the three-year prescription established in Article 2925 C.C.Q.
The suspension
[18]Mr. Justice Lemieux concluded that the Authority had failed to demonstrate that it had been "impossible in fact for [it] to act", as required by Article 2904 C.C.Q.
[19]The Judge was properly apprised of the law and the conclusion he reached is one of fact (see Giguère c. Parenteau, [1990] R.D.J. 598 (Que. C.A.); Chouinard c. Centre hospitalier St. Mary's, [2002] R.J.Q. 12 (Que. C.A.)), in regard to which this Court should not intervene unless there was palpable and overriding error (Housen v. Nikolaisen, [2002] 2 S.C.R. 235). The Judge noted correctly, relying on the remarks of Mr. Justice Gonthier in Gauthier v. Beaumont, [1998] 2 S.C.R. 3, at paragraphs 65 and 66, that prescription is suspended where the impossibility to act results from the fault of the debtor of the obligation. He then turned to a very detailed review of the evidence that had been filed on both sides and concluded that "the facts as a whole indicate that it was not impossible for the LPA to determine the true net tonnage of the Voyageur" (at paragraph 76).
[20]The decisive factor, in my opinion, even though it was not defined as such by the Judge, is this exchange of correspondence between 1991 and 2002, which indicates that the Authority, rightly or wrongly, was satisfied that throughout this period the Voyageur was not subject to compulsory pilotage.
[21]The appellant's theory is based on the premise that the respondents had been engaging in [translation] "deceitful manoeuvres" since 1987 for the purposes of concealing from the Authority, the pilots and the pilots' corporations, the actual amount of the ship's net tonnage. Lemieux J. found no deceitful manoeuvres in the respondent's actions and counsel for the Authority had to acknowledge at the hearing that there was no evidence in the record of anything "deliberate" about the alleged acts. The fact is that the captain of the ship used pilotage services until the Authority informed him that these services would only be provided to him in cases of distress or [translation] "firm request". The Judge's finding, for all intents and purposes, is that there was a misunderstanding over the actual net tonnage from the very first time that the Voyageur took a pilot aboard, in November 1987 (A.R. Vol. 1, at page 99), and that this misunderstanding continued until 2002. The pilots themselves and the associations that represent them (who nevertheless have an interest in ensuring that a ship is subject to compulsory pilotage), as well as the Authority itself, helped to perpetuate this misunderstanding. For instance, this letter sent to the Authority on April 9, 1991 by the Corporation of Mid St. Lawrence Pilots (A.R., Vol. 1, at page 130) stating:
[translation]
Pursuant to clause 14.04 of the service contract, the purpose of this letter is to ask that you no longer dispatch pilots to the vessel C.T.M.A. Voyageur, a vessel that is not subject to compulsory pilotage, except in the following circumstances:
(a) if there is an emergency or distress situation; or
(b) if the C.T.M.A. Voyageur files with the Dispatch Centre a firm request for a pilot before it embarks, accompanied by a waiver of correcting the estimated time of departure 4 hours before that time (section 8(b) of the Laurentian Pilotage Authority Regulations).
We would ask as well that you warn the company that the captain of the vessel is to follow the instructions of the pilot who has the conduct thereof, failing which the pilotage services will be available only in emergency or distress situations.
You will understand that this request has become necessary owing to the lack of discipline of the captain, which affects the overall quality of the service. [Emphasis added.]
[22]This corporation sent another letter on June 19, 1992 (A.R., Vol. 1, at page 132), in these terms:
Effective immediately, pursuant to clause 14.04 of the service contract, the purpose of this letter is to ask that you no longer dispatch pilots to the vessel C.T.M.A. Voyageur, a vessel that is not subject to compulsory pilotage, unless there is an emergency or distress situation.
You will understand that this request has become necessary owing to the manifest ill will of the Company, which affects the overall quality of the service. [Emphasis added.]
[23]This would lead the Authority to send the respondents, on June 22, 1992, with a copy to the said corporation, the letter that I reproduced in paragraph 12 of my reasons.
[24]It is true, as the appellant's counsel argues, that these letters were written in the context of a quarrel between the pilots and the respondents over the latter's use of pilotage services. However, the fact remains that the Authority, the pilots and their corporations were convinced that the Voyageur was not subject to compulsory pilotage, and that the respondents themselves, who knew they were in theory subject to it because of the ship's net tonnage, thought they were being exempted. This conviction of the respondents is confirmed, moreover, in the fact that it was they themselves who, on May 16, 2002, challenged what they believed to be a waiver by trying to make it applicable to the vessel Vacancier, which came into service on June 1, 2002 (A.R., Vol. 2, at pages 206, 218).
[25] Briefly put, in reaching the conclusion that he did, Lemieux J. based himself on evidence that allowed him to draw the inferences that he drew. In my opinion, the appellant's counsel is confusing the "fault" of the respondents--which leads to their obligation to reimburse, and which is conceded, that is, the failure to pay the charges by which they were bound because of the actual net tonnage of the ship--with the "fault" leading to the suspension of the prescription, the latter fault not having been proved to the satisfaction of the trial Judge. There is indeed an obligation but the prescription for the payment of this obligation is not suspended.
[26]The applicable prescription has yet to be determined.
The applicable prescription
[27]Faced with deciding whether it was the three-year prescription established by Article 2925 C.C.Q. in regard to a "personal right", or the ten-year prescription established by Article 2922 C.C.Q. in regard to a claim with a prescriptive period that is not "otherwise fixed by law", that applied, Lemieux J. chose the three-year period. That is a question of law which, of course, is subject, on appeal, to the correctness standard.
[28]Although it may seem, prima facie, that Article 2922 is the general rule, the cases and authorities tend to the view that the general rule is in Article 2925. As Tancelin and Gardner state in Jurisprudence commentée sur les obligations, Montréal: Wilson & Lafleur, 8th edition, 2003, at page 930:
[translation] Article 2922 C.C.Q., which replaces Article 2242 C.C., constitutes in theory the period in ordinary law. But it is in fact Article 2925 C.C.Q. that represents the general rule in this area. . . .
Through the generality of the "personal right" criterion, the provision is applicable to a whole series of hypotheses in which the thirty-year prescription was previously recognized.
(see Longpré c. Gouin, [2003] R.J.Q. 1459 (C.A. Que.), at paragraphs 48 and 49). What the actual text of Article 2922 invites the Court to verify first is whether a shorter prescriptive period is not otherwise provided by law, including by the Code. It is only if no shorter prescriptive period is applicable that Article 2922 will apply.
[29]Article 2925 contemplates "an action to enforce a personal right". The concept of "personal right" is clearly established in civil law. In Le droit civil canadien, tome II, at pages 389 and 390, Mignault stated in 1896 that:
[translation]
A personal right is a person's ability to require that one or more other persons, specifically named, give him some advantage either by doing or by refraining from doing something. The person authorized to require the advantage that is the subject-matter of the obligation is called a creditor; the person who is required to provide it is referred to as a debtor. Thus the custom has developed of referring to a personal right as a claim [créance], and to an obligation as a debt [dette].
. . .
The claim that I have against you, that binds you to execute this or that obligation that you owe me . . . is a personal right, a claim.
[30]The fact that an obligation is statute-based, as in this case, in no way alters its personal nature. In fact, a fair number of so-called personal claims are established by statute, such as the Companies Act of Quebec [R.S.Q., c. C-38] (Pires c. Zaccheo, [1998] R.J.Q. 2973 (Que. C.A.)) and the Civil Code of Québec (Nadeau c. Nadeau, [1999] R.L. 330 (Que. C.A.)) (see also Basil Holding Corp. c. Côte St-Luc (Ville), [1998] R.L. 661 (Que. Sup. Ct.) and Commission des normes du travail c. Perreault, J.E. 2002-2144 (C.Q.)). It is the nature of the right that is exercised that must be examined, not its source, which may be statutory, regulatory, contractual, customary, etc.
[31]The appellant's counsel contends that what is involved here is a request for payment of a penalty, which he says is beyond the scope of Article 2925 C.C.Q. Irrespective of the prescriptive period applicable to the payment of a penalty--on which I take no position--it is clear that section 44 of the Pilotage Act is not a provision of a penal nature. This section is confined to making the ship "liable to the Authority" to the same degree as if the pilotage service had been rendered. The liability established in section 44 is not different from that established in section 42.
[32]Since the applicable prescriptive period is three years, and the action was commenced on March 31, 2003, it follows that the pilotage charges owing before March 31, 2000, can no longer be claimed.
[33]Lemieux J. [at paragraph 90] went further, however. He said that in his opinion, apparently in connection with the pilotage charges payable after March 31, 2000, he "did not receive sufficient particulars to decide whether . . . there were unpaid pilotage charges that were not prescribed" and he dismissed the action in its entirety, while inviting the parties to contact him on this point.
[34]It seems clear to me that the Judge was not withdrawing himself from the case and that his judgment was not final since he invited the parties to clarify, in light of the evidence in the record, the amount of the charges that were not prescribed.
[35]In fact, he had before him a claim that reported annual amounts for each of the years 1987 to 2002 (A.R., Vol. 1, at page 164) without specifying the amount during the year in which these charges had become payable. The record also contained an order of Prothonotary Tabib which, after the pre-trial conference was held, stated that the parties had agreed on certain admissions, including one to the effect that [translation] "the amounts claimed by the plaintiff are consistent with the tariff and the voyages made" (A.R., Vol. 1, at page 89). Finally, the record contained, in the agreed statement of facts filed by the parties on April 8, 2004, paragraph 21 in which the defendants (the respondents), "without acknowledging that they owe the amounts, have acknowledged that if the Court were to conclude that the amounts are owing, the amount claimed is correct and the calculation and determination of this amount is not in dispute" (A.R., Vol. 1, at page 94).
[36]Furthermore, replying to the invitation extended to them by the Judge at the very end of his reasons, the parties' counsel sent him their observations, on July 5 and 7, 2004, respectively. The appellant's counsel asked the Judge to [translation] "set aside at most a half day for the necessary submissions on the quantum of the plaintiff's claim . . . for the last three years". He also manifested a desire to "make some submissions concerning costs" (A.R., Vol. 1, at page 50). The respondents' counsel objected to the appellant's request on the ground that the Judge had become functus officio, but in the same breath asked the Judge to order the discharge from seizure that he had failed to order (A.R., Vol. 1, at page 52). It does not appear that the Judge responded to any of these requests.
[37]In the circumstances, I am of the opinion that the Judge erred in not accepting the request that was made to him by both sides and that the case should be referred to him so that he can rule on the requests made by the parties' counsel.
Disposition
[38]I would allow the appeal, overturn in part the judgment of the Federal Court delivered on June 30, 2004, dismiss the action without costs in regard to Gestion C.T.M.A. Inc., dismiss the action taken against the other defendants pertaining to any claim prior to March 30, 2000 and refer the matter to Mr. Justice Lemieux for him to rule on the requests made to him by counsel for the parties on July 5 and 7, 2004.
[39]I would not award any costs on appeal, as each party has been partially successful.
Desjardins J.A.: I concur.
Pelletier J.A.: I concur.