A-550-75
Lucien Champoux (Applicant)
v.
Great Lakes Pilotage Authority (Respondent)
Court of Appeal, Jackett C.J., Pratte J. and Hyde
D.J.—Montreal, March 30 and April 1, 1976.
Judicial review—Maritime law Pilotage Authority can
celling pilot's licence without providing opportunity to be
heard—Whether condition precedent to validity of cancella-
tion—Federal Court Act, s. 28—Pilotage Act, S.C. 1970-71-
72, c. 52, ss. 3, 12, 15(5),(6), 17-20.
Applicant's pilotage licence was cancelled by respondent
without first giving him an opportunity to answer allegations on
the basis of which the action was taken.
Held, granting the application, the resolution cancelling the
licence is set aside. Under the Pilotage Act, a licence "remains
in force while the ... pilot is able to meet the qualifications
prescribed" (section 15(5)); where he cannot, a duty is cast on
the Authority to cancel (sections 15(6) and 19(2)). Section 17,
read with section 18, provides the machinery for cancellation.
In effect, the Authority can "cancel" a licence if the Chairman
has suspended it under section 17(1) and reported it under
section 17(3), if the Authority has given written notice to the
licensee (section 17(4)), and afforded him a reasonable oppor
tunity to be heard (section 18(2)). Here, these conditions
precedent to cancellation under section 17 do not appear to
have been met. The cancellation is said to have been made
under section 19(2). Respondent has contended that section 19
authorizes cancellation without a hearing, which would render
a section 19(2) cancellation purely administrative, and mean
that the attack must be rejected. Section 17(4)(c) confers a
discretion to cancel or not in any one of the cases set out in
section 17(1) when there is "reason to believe" that any one of
such cases exists. Sections 19(2) and 15(6) impose a duty, and
imply a power to cancel "where a ... pilot ... does not meet
the qualifications." It is possible that when acting under section
17(4)(c), the Authority is exercising a very important discre
tionary power to terminate the licensee's rights while, when
acting under sections 15(6) and 19(2), the Authority is simply
reflecting the fact that a licence has ceased to be valid by
cancelling the written evidence of it. Such a cancellation would
be a nullity if the pilot had not first ceased to meet the
prescribed qualifications. However, such a view poses difficul
ties. The section 17(4) power to cancel covers not only cases of
misconduct, but instances where, because the licensee no longer
meets the prescribed qualifications, such rights have already
automatically been terminated by virtue of section 15(5). And,
the duty and implied power in section 19(2) would seem to be
substantially the same as that in section 15(6), and thus subject
to the section 18(1) requirement of an opportunity to be heard.
In setting aside the cancellation, the Court is not determining
that applicant has the rights conferred on a person by the
granting of a licence, nor restoring them to him.
JUDICIAL review.
COUNSEL:
A. Lortie for applicant.
B. M. Deschênes, Q.C., for respondent.
SOLICITORS:
Desjardins, Ducharme & Associates, Mont-
real, for applicant.
De Grandpré, Colas & Associates, Montreal,
for respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 1 application
to set aside an order of a Pilotage Authority made
on August 6, 1975, cancelling the licence that had
been issued to the applicant under the Pilotage
Act, S.C. 1970-71-72, c. 52.
It is common ground that such cancellation was
effected without first giving the applicant an op
portunity of answering the allegations on the basis
of which such action was taken. The sole question
See section 28 of the Federal Court Act, subsection (1) of
which reads as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
to be decided on this application is whether such
an opportunity was a condition precedent to the
validity of such a cancellation order.
The Pilotage Act 2 establishes Pilotage Authori
ties (section 3) to establish, operate, maintain and
administer "in the interests of safety" an efficient
pilotage service for each region assigned to an
Authority (section 12).
The statute contemplates "compulsory pilotage
areas" within which a ship may not employ any
person as a pilot other than a licensed pilot and
contemplates that the Pilotage Authority will issue
licences to persons who meet the qualifications
prescribed by the Governor in Council and that
Authority (section 15). A licence so issued
"remains in force while the licensed pilot ... is
able to meet the qualifications prescribed ..."
(section 15(5)); when he is unable to meet such
qualifications, a statutory duty is cast on the Au
thority to "cancel" his licence (section 15(6) and
section 19(2)); and when a licence is cancelled, the
"licence" must be delivered up (section 20).
It is obviously important to a safe pilotage
scheme that such a licence can, if the circum
stances require it, be suspended or cancelled by the
appropriate authority. Section 17, which must be
read with section 18, provides machinery for such
action. Those sections read:
17. (1) The Chairman of an Authority may suspend a
licence or pilotage certificate for a period not exceeding fifteen
days where he has reason to believe that the licensed pilot or
the holder of a pilotage certificate
(a) has, while he has had the conduct of a ship or has been
on duty on board ship pursuant to a regulation of an Author
ity requiring a ship to have a licensed pilot or holder of a
pilotage certificate on board, contravened a provision of
subsection (3) or (4) of section 16;
(b) has reported for duty in circumstances such that, if he
had been on duty, he would have been in contravention of a
provision of subsection (3) of section 16;
(c) has been negligent in his duty; or
(d) does not meet the qualifications required of a holder of a
licence or pilotage certificate.
(2) Where the Chairman of an Authority suspends a licence
or pilotage certificate orally he shall, within forty-eight hours
of the suspension, confirm the suspension in writing together
2 Reference in these Reasons to sections by number only will
be references to such sections in the Pilotage Act unless the
context otherwise requires.
with the reasons therefor to the licensed pilot or holder of the
pilotage certificate at his address as shown on the register kept
by the Authority pursuant to section 21.
(3) Where the Chairman of an Authority suspends a licence
or pilotage certificate he shall, within forty-eight hours of the
suspension, report the suspension to the Authority.
(4) Where the Authority receives a report pursuant to sub
section (3), it may
(a) approve or revoke the suspension under subsection (I),
(b) suspend the licence or pilotage certificate
(i) for a further period not exceeding one year, or
(ii) for an indefinite period until the licensed pilot or
holder of a pilotage certificate shows that he is able to
meet the qualifications prescribed by the regulations, or
(c) cancel the licence or pilotage certificate,
but no action shall be taken pursuant to paragraph (b) or (c)
unless, before the suspension authorized by the Chairman
under subsection (1) terminates, the Authority gives written
notice to the licensed pilot or holder of a pilotage certificate
setting out the action the Authority proposes to take and the
reasons therefor.
18. (1) An Authority shall, before refusing to issue a licence
or pilotage certificate or cancelling a licence or pilotage certifi
cate pursuant to subsection (6) of section 15, afford the appli
cant therefor or holder thereof or his representative a reason
able opportunity to be heard.
(2) Where the Authority gives written notice to a licensed
pilot or the holder of a pilotage certificate that it proposes to
suspend his licence or pilotage certificate for a further period or
to cancel his licence or pilotage certificate pursuant to subsec
tion (4) of section 17, the Authority shall afford the holder of
the licence or pilotage certificate or his representative a reason
able opportunity to be heard before the action is taken.
(3) Where a hearing is to be held as provided by subsection
(1) or (2) and the applicant for a licence or pilotage certificate,
or the holder of a licence or pilotage certificate, as the case may
be, requests a public hearing, or where the Authority is satis
fied that it would be in the public interest to hold a public
hearing, the Authority shall hold a public hearing and hear all
persons having an interest in the matter who wish to be heard
in connection therewith.
(4) The Authority has, in relation to any hearing before it,
all the powers of a commissioner under Part I of the Inquiries
Act.
(5) An applicant who is refused the issue of a licence or
pilotage certificate or the holder of a licence or pilotage certifi
cate that is suspended or cancelled pursuant to section 15, 17 or
19 may, after a hearing by an Authority under this section,
apply to the Minister for a review of the decision of the
Authority and where, after considering the application and any
material submitted therewith, the Minister is of the opinion
that the issue of the licence or pilotage certificate should not
have been refused or the licence or pilotage certificate should
not have been suspended or cancelled, the Minister may direct
the Authority to
(a) issue the licence or pilotage certificate;
(b) rescind the suspension or cancellation of the licence or
pilotage certificate; or
(c) reduce the period of the suspension, on such conditions, if
any, relating to the licence or pilotage certificate as the
Minister deems proper.
In effect, these provisions authorize an Author
ity to "cancel" a licence if
(a) the Chairman has suspended it under sec
tion 17(1) and has reported under section 17(3);
(b) the Authority has given the licensee written
notice as contemplated by section 17(4); and
(c) the Authority has afforded the licensee a
reasonable opportunity to be heard under sec
tion 18(2).
In this case, it would not appear that these condi
tions precedent to cancellation of a licence under
section 17 had all been met; the cancellation is,
instead, said to have been made under section
19(2). Section 19 reads as follows:
19. (1) A licence ceases to be valid when a licensed pilot
(a) who is an employee of an Authority ceases to be
employed as a licensed pilot, or
(b) who is a member or shareholder of a body corporate
referred to in subsection (2) of section 9 ceases to be a
member or shareholder of the body corporate.
(2) An Authority shall cancel a licence or pilotage certifi
cate when a licensed pilot or holder of a pilotage certificate
does not meet the qualifications required of a holder of a
licence or pilotage certificate.
With section 19(2) there should be compared sec
tion 15(6), which reads:
(6) Where a licensed pilot or holder of a pilotage certificate
is unable to meet the qualifications prescribed by the regula
tions for the class of licence or pilotage certificate that he then
holds, an Authority shall cancel the existing licence or pilotage
certificate, and if the licensed pilot or holder of a pilotage
certificate is able to meet the qualifications for a licence or
pilotage certificate of a different class shall issue a licence or
pilotage certificate of that different class to the licensed pilot or
holder of a pilotage certificate.
As I understand it, the only question in this case
arises out of the contention of the respondent,
which is disputed by the applicant, that section 19
authorizes cancellation of a pilot's licence without
his having been given any opportunity to be heard.
The result of such contention, if it is sound, is that
(a) a section 19(2) cancellation is a purely
administrative action that cannot be reviewed by
this Court under section 28, and
(b) the attack on the cancellation order based
on the failure to give such an opportunity must,
in any event, be rejected.
I have great difficulty in spelling out of the
Pilotage Act separate and sensible functions for
section 15(6), section 17(4)(c) and section 19(2).
I do detect a real verbal and substantive distinc
tion between section 17(4)(c) on the one hand and
section 15(6) and section 19(2) on the other hand.
Read in the ordinary way, section 17(4)(c) confers
a discretion to cancel or not to cancel in any of the
cases spelled out in section 17(1), which includes
not only cases of misconduct but also cases of
disqualification. Such discretion exists when there
is "reason to believe" that one of such cases exists.
On the other hand, section 19(2) and section 15(6)
impose a duty (which implies a power) to cancel
"when a licensed pilot ... does not meet the
qualifications ...". One tenable view, I suggest, is
that, when acting under section 17(4)(c), the Au
thority is exercising a very important discretionary
power to terminate the rights conferred on the
holder of a pilot's licence, while, when acting
under section 15(6) and section 19(2), the Author
ity is merely reflecting the fact that a licence has
ceased to be valid by cancelling the written evi
dence of it, which is also called a "licence". On
this view, a cancellation under section 15(6) or
section 19(2) would be ineffective and a nullity if
the pilot had not, in fact, ceased, before the pur
ported cancellation, to meet the prescribed qualifi
cations; and the purported cancellation would in
any such case be a nullity, which could be estab
lished by proving the correct facts whenever and in
whatever court the question might arise.
However, from the point of view of an intelli
gible legislative scheme, there are, as it seems to
me, certain difficulties in the way of adopting this
view of the legislative intention, viz:
(a) in so far as the section 17(4) power to
cancel is concerned, it extends not only to cases
of misconduct, where the substantive rights con
ferred by the licence continue to exist and may,
in the discretion of the Authority, be terminated
in the proper exercise of a disciplinary power,
but it extends also to cases where, because the
holder of the licence no longer meets the pre
scribed qualifications, such rights have already
automatically terminated by virtue of section
15(5); and
(b) the duty (and implied power) contained in
section 19(2) would seem to be substantially the
same duty (and power) as that contained in
section 15(6) and to be, therefore, subject to the
requirement in section 18 (1) that it not be exer
cised until the holder of the "licence" has been
afforded an opportunity to be heard.
Furthermore, it is to be noted that, while a licence
ceases to have operative effect when the holder
ceases to meet the prescribed qualifications, a
power to "cancel" a licence on that ground without
a hearing would include, not only a power to
require a person to deliver up a "licence" when he
has in fact ceased to meet the qualifications, but
also an arbitrary power to create a situation where
a person is, in fact, required to deliver up his
"licence" without his having had an opportunity to
rebut an allegation that he has ceased to meet the
prescribed qualifications (section 20) unless he is
prepared to seek relief in the courts from the
exercise of that arbitrary power.
For the above reasons, I have concluded that the
applicant is entitled to have the Resolution passed
by the Board of Directors of Great Lakes Pilotage
Authority on August 6, 1975, set aside in so far as
it purported to cancel the applicant's licence as a
pilot, because it was made without his first having
been afforded a reasonable opportunity to be
heard.
It must be understood, however, that, when the
Court sets aside the cancellation of his "licence",
the Court is not determining that the applicant has
the rights, and is not restoring to him the rights,
conferred upon a person by the grant of a licence
under the Pilotage Act. Whether or not he enjoys
such rights depends upon the provisions of the
statute (e.g. section 15(5)). The duty (and the
power) of the Pilotage Authority to cancel a
licence because the holder has ceased to enjoy such
rights is conditioned upon the Authority first
giving to the holder an opportunity to be heard.
All that is necessary to make the applicant entitled
to the judgment that I am proposing is that the
Pilotage Authority cancelled the applicant's
licence without complying with that condition. I
am sure that it is not necessary to remind the
applicant of the continuing effect of section 15(5)
and section 16(3) or to remind the Pilotage Au
thority of its continuing duty under section 12,
section 15(6) and section 19(2).
I propose that the section 28 application be
granted and that the Resolution passed by the
Board of Directors of Great Lakes Pilotage Au
thority on August 6, 1975 be set aside in so far as
it purported to cancel the applicant's licence under
the Pilotage Act.
* * *
PRAT`rE J. concurred.
* * *
HYDE D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.