A-541-81
Captain Gordon L. Barker (Applicant)
v.
Pacific Pilotage Authority, Minister of Transport
the Honourable Jean-Luc Pépin (Respondents)
Court of Appeal, Thurlow C.J., Pratte J. and
Verchere D.J.—Vancouver, March 22, 23, 24 and
30, 1982.
Judicial review — Applications to review — Pilotage —
Suspension by Pacific Pilotage Authority of applicant's licence
on ground of negligence in duty — Dismissal by Minister of
Transport of application for review of Authority's decision —
Application to review and set aside Minister's decision — Ship
piloted through narrow pass, at night and outside slack water
period — Struck submerged object and damaged — Lack of
proper care and attention found by Minister — Whether
Authority and Minister erred — Evidence not showing that use
of pass at night not common practice — Earlier accident in
same area involving same pilot not to be considered in deter
mining negligence — Assertion by Minister that these points
"particularly relevant to question of negligence", prejudicial to
applicant — Application allowed — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28 — Pilotage Act, S.C. 1970-71-
72, c. 52, ss. 12, 17(1),(3),(4), 18(2),(4),(5), 42(e).
Application to review and set aside the decision of the
Minister of Transport to dismiss an application for review of a
decision of the Pacific Pilotage Authority. The latter suspended
the applicant's licence to act as a pilot for a period of thirty
days, on the ground of negligence in his duty. The ship, while
being piloted by the applicant through a narrow pass, at night
and outside the slack water period, struck a submerged object
and was later discovered to be damaged. The Minister held that
the evidence showed a lack of proper care and attention on the
part of the applicant. According to the Minister, certain points
were particularly relevant to the question of negligence: the
applicant knew that the pass was not recommended for use at
night; the use of the pass at night was not common practice; the
applicant's method of navigation "by eye" was not prudent; and
the accident was the second one experienced by the applicant in
the same area. The issues are whether the Authority and the
Minister were biased, or whether there was a reasonable appre
hension of bias; whether the charges were improperly disclosed
to applicant and altered; whether the Authority and the Minis
ter based their decisions on erroneous findings of fact; and
whether they erred in failing to apply the standard of proof
beyond a reasonable doubt or balance of probabilities.
Held, the application is allowed and the matter referred back
to the Minister for redetermination. The Minister's finding that
it was not common practice to use the pass by night is not
sustainable. The evidence showed that some pilots used the pass
during darkness. Furthermore, the fact of an earlier accident is
a matter which cannot properly be taken into account in
reaching a conclusion that the applicant had been negligent.
The assertion by the Minister that those points were "particu-
larly relevant to the question of negligence" was highly prejudi
cial to the applicant. In view of this, the decision is set aside
and referred back to the Minister for redetermination. The
applicant's other grounds of attack fail. There is no evidence
from which bias or reasonable apprehension of bias can reason
ably be inferred. Likewise, there is no basis for the submission
that the reasons for suspension were not properly disclosed or
were altered. As to the onus, it is up to the applicant to satisfy
the Authority or the Minister that his conduct was not negli
gent. This is not a case of a charge against the applicant to be
proved by the Authority, either beyond reasonable doubt or by
a preponderance of evidence. The finding that the applicant's
method of navigating "by eye" was not prudent, can be sup
ported. The question whether the failure to use radar rendered
the method imprudent is a question of fact within the authority
of the Minister to decide. Finally, there was evidence upon
which the Minister could conclude that the applicant knew that
the pass was not recommended for use at night.
APPLICATION for judicial review.
COUNSEL:
J. D. L. Morrison for applicant.
W. O'M. Forbes for respondent Pacific Pilot-
age Authority.
Alan Louie for respondent Minister of Trans
port.
SOLICITORS:
Bull, Housser & Tupper, Vancouver, for
applicant.
Owen, Bird, Vancouver, for respondent Pacif
ic Pilotage Authority.
Deputy Attorney General of Canada for
respondent Minister of Transport.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside a
decision of the Minister of Transport under sub
section 18(5) of the Pilotage Act, S.C. 1970-71-
72, c. 52. The Minister's decision dismissed an
application for review of a decision of the Pacific
Pilotage Authority suspending for a further period
of thirty days the applicant's licence to act as a
pilot after finding, following a three-day hearing,
that the ship Delta America, which the applicant
was piloting at the material time
... had struck a submerged obstruction in Porlier Pass and that
Captain Barker had been negligent in his duty in the manner
set out in the Authority "Notice of Action Authority Proposes
to Take", dated October 17th, 1980 as follows:
(a) In darkness and not during slack water, despite previous
warning that passage not recommended and should be attempt
ed only at slack water and in daylight;
(b) At excessive speed; and
(c) Without proper regard to vessel's heavy trim by stern,
accentuation of this by speed, shallow depth of water available
and risk of running over submerged rocks.
The Pacific Pilotage Authority is one of several
such bodies, each of which has been established
under the Pilotage Act for a particular defined
region and exercises therein the powers in relation
to pilotage conferred on it by the Act. Section 12
provides:
12. The objects of an Authority are to establish, operate,
maintain and administer in the interests of safety an efficient
pilotage service within the region set out in respect of the
Authority in the Schedule.
Under subsection 17(1), the Chairman of a
Pilotage Authority has authority to suspend the
licence of a pilot for a period not exceeding fifteen
days "where he has reason to believe that the
licensed pilot ... has been negligent in his duty".
When the Chairman suspends a licence he is
required by subsection 17(3) to report the suspen
sion to the Authority which, under subsection
17(4) has authority to approve or revoke it. Under
the same subsection the Authority also has power
to suspend the licence for a further period not
exceeding one year but may not do so unless,
before the suspension authorized by the Chairman
terminates, it notifies the licensed pilot in writing
of the action it proposes to take and the reasons
therefor. When such a notice is given, the Author
ity is required by subsection 18(2) to afford the
licensed pilot a reasonable opportunity to be heard
before the action is taken. In relation to such a
hearing the Authority has, under subsection 18(4),
the powers of a commissioner under Part I of the
Inquiries Act, R.S.C. 1970, c. I-13. A set of rules
governing the procedure at such hearings has been
prescribed by regulations made by the Governor in
Council under paragraph 42(e) of the Act.
It was under these statutory provisions that the
further suspension of thirty days had been
imposed. The incident in Porlier Pass had occurred
on December 20, 1979. On October 6, 1980, the
Chairman exercised his authority to suspend the
applicant's licence for fifteen days and on October
16, 1980 the applicant was notified of the Author-
ity's intention to impose a further suspension of
sixty days for reasons set out in practically the
same terms as those already quoted from the
decision. The hearing requested by the applicant
was held on December 18, 19 and 20, 1980 and the
Authority's decision, imposing a further suspen
sion of thirty rather than sixty days, was given on
December 30, 1980.
The applicant then applied to the Minister
under subsection 18(5) to review the decision and
this resulted in the Minister's decision which is
attacked in this proceeding.
Subsection 18(5) provides that "... the holder
of a licence ... that is suspended ... pursuant to
section ... 17 . .. may, after a hearing by an
Authority ... apply to the Minister for a review of
the decision of the Authority and where, after
considering the application and any material sub
mitted therewith, the Minister is of the opinion
that ... the licence ... should not have been
suspended ... the Minister may direct the Author
ity to ... rescind the suspension . .. or . .. reduce
the period of the suspension, on such conditions, if
any, relating to the licence ... as the Minister
deems proper."
When applying for the review, the applicant
asked for an oral hearing by the Minister but this
was refused. Thereafter, under a procedure pre
scribed by the Minister, the applicant submitted a
78-page memorandum of representations. This was
answered by a 13-page memorandum submitted on
behalf of the Authority and the applicant replied
with a further memorandum of some 15 pages.
The Minister also had before him the exhibits
produced and a transcript of the evidence given at
the hearing before the Board of the Pacific Pilot-
age Authority. The Minister's decision, after
describing the proceeding and summarizing the
respective representations proceeded:
In giving consideration to all submissions placed before me, I
am of the view that the issue is not whether the "DELTA
AMERICA" struck a rock, a log or some other unidentified
submerged object on the night of December 20, 1979. On the
contrary, the incident in Porlier Pass which resulted in the
discovery of damage to the "DELTA AMERICA" served only to
bring to light the circumstances under which Captain Barker
was negotiating Porlier Pass. The exact cause of the damage to
the "DELTA AMERICA" has not been determined with certainty,
but such a determination is not necessary to resolve the issue
arising from this incident. The issue is whether the facts
established concerning the manner in which Captain Barker
negotiated Portier Pass constitute negligence.
Counsel for the Appellant and the Pacific Pilotage Authority
have presented a considerable amount of evidence on a wide
range of points of varying relevance. The Pacific Pilotage
Authority Board was free to weigh the evidence and to accept
or reject it in accordance with its judgment. I find no evidence
of bias on the part of the Board.
I am of the view that the following points are particularly
relevant to the question of negligence:
1. Captain Barker knew that Porlier Pass was not recommend
ed for use at night, and it was not common practice to use it at
night.
2. The Canadian Hydrographic Sailing Direction for Portier
Pass indicates three conditions for safe passage: a handy vessel;
slack water; attention to the chart. The Pacific Pilotage Au
thority recommended to Captain Barker that passage be made
only at slack water. The time of passage through Porlier Pass
on December 20, 1979 was well outside the slack water period.
3. In considering the narrow channel being negotiated, the
shallow depth of water, the existence of currents, the possible
effects of "squat" and the need to follow the chart carefully,
passage at full speed was excessive and imprudent.
4. Captain Barker's method of navigating "by eye" when
navigation aids and records would have improved his ability to
determine his position was not prudent considering that visual
references at night are limited.
5. This is the second accident Captain Barker has experienced
in Porlier Pass.
6. Concern for the environment and shipping safety requires
cautious navigation and avoidance of unnecessary risk.
7. There was no matter of emergency or pressing need requiring
the use of Portier Pass on the night of December 20, 1979 and
alternate safer passes were available requiring little extra time
and expense.
In considering these points together with the written docu
mentation and viva voce evidence submitted, I find that the
evidence shows a lack of proper care and attention on the part
of the Appellant. The arguments raised in the Appellant's
submissions do not in my opinion mitigate in a finding of
negligence against him, and accordingly, the appeal must be
dismissed.
In his memorandum of argument and at the
hearing in this Court, counsel for the applicant
sought to expand the application under section 28
of the Federal Court Act so as to attack not only
the decision of the Minister but that of the Au
thority as well. He asked that both be set aside. As
the only application before the Court is that seek
ing a review of the Minister's decision, the attack
on the decision of the Authority cannot be enter
tained and the points made cannot be considered
save in so far as they may be relevant as attacks on
the decision of the Minister.
In summary the attacks on both decisions were:
A. That the principles of natural justice were
not observed in that:
(a) the Board of the Pacific Pilotage Au
thority was biased or there was a
reasonable apprehension of bias,
(b) the Minister was biased or there was a
reasonable apprehension of bias,
(c) the charges against the applicant were
never properly disclosed to him and
were altered from time to time in order
to render a decision unfavourable to
him.
B. That the Authority and the Minister based
their decisions on erroneous findings of fact
made without regard for the material before
them, and
C. That the Authority and the Minister erred in
law in failing to apply the standard of proof
beyond a reasonable doubt or even balance
of probabilities in their consideration of the
evidence.
As to A and C, the Court was of the opinion,
after hearing lengthy argument by counsel for the
applicant, that there was no merit whatever in any
of the submissions made and did not call on coun
sel for the Authority or for the Minister to respond
to them. There was no evidence from which bias,
or a reasonable apprehension of bias, on the part
of the Authority or its Board or the Minister could
reasonably be inferred.
Moreover there was no basis for the submission
that the reasons for the suspension were not prop
erly disclosed to the applicant or that the reasons
ever changed. The applicant may have assumed
and acted on the impression that the only issue was
whether what the Delta America struck was
Romulus Rock or was a deadhead, but as the
decision of the Minister points out, the issue for
the Authority and for the Minister was not merely
what caused the damage but the broader issue
whether the applicant had been negligent, in the
particulars set out in the notice to him, in the
discharge of his duty in piloting the vessel on her
voyage. Further, if there is any onus or standard of
proof to be observed in proceedings before the
Authority or the Minister, it seems to me that
under the particular, and somewhat unusual,
provisions of the statute, it rests on the applicant
to satisfy the Authority or the Minister, as the
case may be, that his conduct in piloting the ship
on her voyage was not negligent in any of the
respects set out in the notice. This is not a case of a
charge against him to be proved by the Authority,
either beyond reasonable doubt or by a preponder
ance of evidence. It is a case of affording to the
holder of a licence, before disciplining him, an
opportunity to be heard with respect to faults in
his performance of his duties as a pilot which have
come to light in the course of investigating the
cause of damage occasioned to a vessel while being
piloted by him.
Under B the applicant attacked not only the
findings of the Authority but also each of the
matters set out in the numbered paragraphs which
I have cited from the Minister's decision, except
paragraph 2, the attack on which was abandoned.
With respect to most of these attacks the Court
was of the opinion that they were without merit
and, with the exception of those respecting the
paragraphs numbered 1, 4 and 5, did not call on
counsel for the Minister or for the Authority to
respond to them.
With respect to the finding in the paragraph
numbered 4 in the Minister's decision, in my view,
there is evidence upon which the Minister could
conclude, as he did, that Captain Barker's method
of navigating "by eye" when navigation aids and
records would have improved his ability to deter
mine his position was not prudent. The vessel was
being navigated at a considerable speed through a
pass that was not less than 0.4 mile wide but of
which the navigable channel was narrow and in
which a tidal current was running. No effective
use was being made of a radar which was available
and could have been used to keep the pilot
informed precisely of his position when approach
ing, entering and moving through the pass. In this
situation whether the failure to make use of the
radar rendered the method of navigation impru
dent is not a question of law but one of fact which
it was within the authority of the Minister to
decide.
I am also satisfied, with respect to paragraph 1,
that the letter written by the Authority to the
applicant on January 22, 1974, was evidence upon
which the Minister could conclude, as he did, that
the applicant knew that Porlier Pass was not
recommended for use at night. The letter informed
the applicant that the pilots' representatives had
made recommendations to their membership,
endorsed by the Authority, for the safe passage of
various narrow channels in the region but that
Porlier Pass was not one of them and that it was
the understanding of the members of the Author
ity that Porlier Pass was not recommended by the
majority of pilots for the safe passage of ships, and
if used should only be used during periods of slack
water in daylight. The extent to which this view
may have had the support of pilots who had occa
sion to choose between Porlier Pass and other
routes is not in point. What is in point and is
apparent is that there had been no recommenda
tion by the pilots' representatives or by the Au
thority that it be used at night.
The letter, however, in my opinion, is not evi
dence that "it was not common practice to use it
(Porlier Pass) at night" and there is in my view no
other evidence in the record which would support
such a conclusion. The only evidence on the point
is to the contrary. The applicant gave evidence of
having used it at night on four occasions out of five
in 1980. In the course of his evidence, Captain
Horne, the president of British Columbia Coast
Pilots Limited, deposed:
Q. Captain Horne, can you say whether Pilots, other than
Captain Barker, use Porlier Pass in the general conduct
of their employment?
A. Yes.
Q. And do some of these Pilots use Porlier Pass during hours
of darkness?
A. Yes.
Q. How do you know this, sir?
A. Well, I check the source cards.
I am accordingly of the opinion that the Minis
ter's finding that it was not common practice to
use Porlier Pass by night is not supported by
evidence and is not sustainable.
I am also of the opinion, notwithstanding the
submissions by counsel both for the Minister and
for the Authority, that in considering whether the
applicant was negligent in the performance of his
duty on the occasion in question, the fact of his
having had a previous accident in Porlier Pass is
irrelevant and that it remains irrelevant despite the
fact that the previous accident was also at night
and occurred when the tide was not slack. While
the fact of a previous accident in Porlier Pass
might be relevant in considering the extent of an
appropriate suspension, if negligence were estab
lished, the fact of an earlier accident was, in my
view, a matter which could not properly be taken
into account in reaching a conclusion that the
applicant had been negligent on the occasion here
in question.
It is not inconceivable that the finding that it is
not common practice to use Porlier Pass at night
did not loom large as a foundation for the Minis
ter's conclusion. Nevertheless, it is among the
points which the decision asserts are "particularly
relevant to the question of negligence". The same
assertion applies to the point that this was the
second accident the applicant had experienced in
Porlier Pass. But this reference as it seems to me,
so far from being of little importance, is capable of
being highly prejudicial to the applicant. I would,
therefore, set aside the decision and refer the
matter back to the Minister for reconsideration
and redetermination on the basis, (1) that it is not
established that it was not common practice to use
Porlier Pass at night and (2) that the fact that the
incident here in question is the second accident the
applicant has experienced in Porlier Pass is irrele
vant and should not be considered in determining
whether or not the applicant was negligent in the
performance of his duty on the occasion in
question.
PRATTE J.: I agree.
VERCHERE D.J.: I agree.
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.