A-16-74
In re Pilotage Act and in re Captain Colin
Darnel (Applicant)
Court of Appeal, Thurlow, Pratte and Urie JJ.—
Vancouver, October 8,9, 10, 11 and 17, 1974.
Judicial review—Maritime law—Ships in collision—Sus-
pension of one pilot's licence by Chairman of Pilotage
Authority—Approval of suspension by Pilotage Authority—
Approval within jurisdiction—Further suspension of pilot by
Authority—Suspension invalid for defective notice—Pilotage
Act, S.C. 1970-71-72, c. 52, ss. 17, 18(2)—Federal Court
Act, s. 28.
The applicant, pilot of a ship in collision with another
ship, had his licence suspended for 15 days by the Chairman
of the Pacific Pilotage Authority. The latter approved the
suspension and served notice on the applicant, stating that
(a) he had been negligent in permitting the collision; (b) that
he had failed to give the Authority an adequate explanation
of the circumstances leading up to the collision. The Author
ity included a list of over 50 relevant documents in its
possession. When his request for immediate production of
the documents was denied, the applicant declined to request
a hearing. He made a section 28 application for judicial
review and the setting aside of the decisions.
Held, allowing the application in part, the approval by the
Authority, under section 17(4)(a) of the Pilotage Act, of the
suspension by the Chairman, under section 17(1), involved a
power exercisable without giving the licence holder an op
portunity to be heard and was not a power required to be
exercised on a judicial or quasi-judicial basis. Hence it was
not reviewable under section 28 of the Federal Court Act.
But the omission from the notice given by the Authority to
the applicant under section 17(4), of the acts or defaults of
the applicant, on which the Chairman relied in exercising his
power, left it open to the Authority to find different or
additional acts or defaults by the applicant, as constituting
negligence. The vague and general terms of the notice failed
to meet the purpose of section 17(4), which was to apprise
the pilot of the action which the Authority proposed to take
with respect to his licence and of the reasons therefor, so
that he could decide what action he should take to defend
himself. The defects in the notice continued until the expiry
of the time limited for the period of suspension under
section 17(4). The Authority's order for further suspension
should be set aside.
JUDICIAL review.
COUNSEL:
D. Brander Smith for applicant.
W. O'Malley Forbes for respondent.
SOLICITORS:
Bull, Housser & Tupper, Vancouver, for
applicant.
Owen, Bird, Vancouver, for respondent.
The following are the reasons for judgment
delivered in English by
THURLOW J.: This is an application under
section 28 of the Federal Court Act to review
and set aside a decision of the Pacific Pilotage
Authority which approved a fifteen day suspen
sion of the licence of the applicant, Captain
Colin Darnel, to act as a pilot, which had been
imposed by the Chairman of the Authority on
October 3rd, 1973 under subsection 17(1) of the
Pilotage Act, S.C. 1970-71-72, c. 52,' and
imposed under subsection 17(4) of the Act an
additional suspension of the applicant's licence
for fifteen days commencing on January 9th,
1974.
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
Authority 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 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.
(Continued on next page)
The latter subsection provides that no action
shall be taken to impose a further suspension
...unless, before the suspension authorized by the Chair
man under subsection (1) terminates, the Authority gives
written notice to the licenced pilot setting out the action the
Authority proposes to take and the reasons therefor.
In the present case within the initial suspen
sion period a notice was given which in the
material portion read as follows:
...
(a) that the Authority has reason to believe you were
negligent in your duty in permitting the Ship "SUN DIA
MOND" to collide with the Ship "ERAWAN" off Point Grey
near Vancouver, British Columbia on September 25th,
1973, and
(b) that you have failed to give the Authority an adequate
explanation of the circumstances leading up to that
collision.
The substance of paragraph (a) differed from
what had been set out in the Chairman's notice
of suspension under subsection 17(1) in omit
ting a statement of the acts or defaults of the
applicant which were the basis for finding that
he had been negligent in his duty within the
meaning of subsection 17(1). The omission of
(Continued from previous page)
(4) Where the Authority receives a report pursuant to
subsection (3), it may
(a) approve or revoke the suspension under subsection
(1),
(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. (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 subsection (4) of section 17, the Authority shall
afford the holder of the licence or pilotage certificate or his
representative a reasonable opportunity to be heard before
the action is taken.
such a statement appears to have been deliber
ate and to have been intended to leave it open to
the Authority to find different or additional acts
or defaults on the part of the applicant, as
further information might disclose, as constitut
ing negligence in his duty. In the event this is
what ultimately occurred.
In compliance with a provision of the Regula
tions made under the Act the notice also includ
ed a list of documents, of which there were
more than fifty, which the Authority had in its
possession respecting the matter. A request for
immediate production of these documents was
denied and the applicant thereupon declined to
request a hearing.
In these circumstances the question arises
whether the Authority complied with the statu
tory requirement that it give notice, within the
time limited by the subsection, of the action
which it proposed to take and the reasons
therefor.
In my opinion the purpose of the notice pre
scribed by subsection 17(4), and of the statutory
requirements as to its contents, in the kind of
procedure contemplated by the statute, is obvi
ous. It is to apprise the pilot concerned of the
action which the Authority proposes to take
with respect to his licence and of the reasons
therefor so that he can decide what action he
should take to defend himself. This purpose
cannot, however, be fulfilled when what is
stated in the notice as being the reasons for
such proposed action is so general as to give no
information at all as to what there was in the
conduct of the pilot concerned which constitut
ed neglect of his duty and for which if he does
not answer, or if he makes no effective answer,
his licence will be suspended.
In the present case the wording of the notice
which I have cited vaguely suggests that some
unspecified last minute action to avoid a colli
sion was not taken but to take even that as its
meaning is speculative and it seems to me that a
fair reading of the notice would leave any
reader, including the applicant, to whom the
events were known, completely uninformed as
to what the reason for the proposed action of
the Authority was, if indeed there was any
reason other than that embraced in the para
graph lettered (b) which is not one of the mat
ters in respect of which the Authority could
suspend under subsection 17(4). The notice
accordingly, in my opinion, did not comply with
the statutory requirements and as I see it even if
compliance by the Authority with the appli
cant's request for copies of the documents
before the termination of the suspension under
subsection 17(1) might have served to remedy
the defect, as to which I express no opinion, the
shortcomings of the notice continued until the
time for giving a valid notice had terminated.
It follows in my opinion that the authority
was without jurisdiction to order a further sus
pension of the applicant's licence under subsec
tion 17(4) and that the suspension order should
be set aside.
The confirmation of the earlier suspension,
however, stands on a different basis. It appears
to me that the power to approve that suspension
is exercisable without giving the licence holder
an opportunity to be heard and is not a power
that is required by law to be exercised on a
judicial or a quasi-judicial basis. The approval is
therefore not reviewable under section 28 of the
Federal Court Act.
* * *
The following are the reasons for judgment
delivered in English by
PRA7 - rE J.: I would dispose of this application
in the way suggested by Mr. Justice Thurlow.
The decision of the Pacific Pilotage Authority
that is here under attack contains in fact two
decisions:
(a) The decision to confirm the order of the
Chairman suspending the licence of the appli
cant for a period of fifteen days; and
(b) The decision to suspend the applicant's
licence for a further period of fifteen days.
If the Authority could, under the statute, con
firm the suspension already imposed by the
Chairman without giving the applicant an oppor
tunity to be heard, it would seem to follow that
such a decision was "not required to be made
on a judicial or quasi-judicial basis" and, conse
quently, is not reviewable under section 28 of
the Federal Court Act. However, I need not
express any opinion on that point since, assum
ing that decision to be reviewable, I am of the
view that the applicant has failed to show any
reason why it should be reviewed.
The decision to suspend the applicant's
licence for a further period of fifteen days
stands on a different footing. It is clearly
reviewable under section 28 since section 18 of
the Pilotage Act imposes on an Authority wish
ing to make such a decision the duty to afford
the interested pilot "a reasonable opportunity to
be heard before the action is taken". Moreover,
under section 17(4) of the Pilotage Act, an Au
thority cannot suspend a licence if it has not,
within the prescribed time, given "written notice
to the licensed pilot ... setting out the action
the Authority proposes to take and the reasons
therefor".
In my view the "Notice of the action the
Authority proposes to take" that was given to
the applicant was not the notice contemplated
by section 17(4). It stated not the action but
only the kind of action the Authority proposed
to take and it did not state with sufficient preci
sion the reasons for the proposed action. As
that notice, in my view, did not meet the
requirements of section 17(4), it follows that I
am of the opinion that the Authority did not
have the power to suspend the applicant's
licence for a further period of fifteen days. I
would, therefore, set aside its decision.
I do not wish to imply that the Authority's
actions were dictated by any improper motives.
The material before us shows that the Authority
acted as it did in order to be fair to the appli
cant. After learning that the applicant had been
suspended by the Chairman, the members of the
Authority held a meeting where they expressed
the opinion tha' "pertinent information relative
to their making k, decision under section 17(4) of
the Pilotage Act was missing". They then direct
ed the Chairman to seek from the applicant
answers to certain questions. It was only after
the applicant had refused to give them any
information on the facts surrounding the colli
sion in which he had been involved that, on the
last day of the suspension ordered by the Chair
man, a vague notice was delivered to the appli
cant. The members of the Authority, in all likeli
hood, felt at that time that the notice could not
be more precise since they did not know enough
facts to determine whether or not a further
suspension was warranted. However well-inten-
tioned the members of the Authority may have
been though, the fact remains that the notice
was too vague.
When the Chairman, acting under section
17(1), has suspended a licence and reports that
suspension to the Authority, as he is required to
do by section 17(3), the Authority must, before
the expiration of that suspension, determine
whether the licence suspended by the Chairman
should be suspended for a further period. The
Authority is required to make that determina
tion quickly on the basis of the information it
then has. If the Authority reaches the conclu
sion that a further suspension is warranted, it
must, within the prescribed time, notify the
interested pilot of the length of the proposed
additional suspension and of its reasons for
intending to impose it. In my view, after the
Chairman has reported a suspension pursuant to
section 17(3), the Authority cannot, under the
statute, send a vague notice of an uncertain
proposed action and later hold, after the time
prescribed by section 17(4), an investigation for
the purpose of determining whether, in fact, a
further suspension is justified.
* * *
The following are the reasons for judgment
delivered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of Thurlow J. and
would dispose of the application in the manner
in which he does but in connection therewith I
wish to make one or two supplementary
observations.
Firstly, the B.C. Pilotage Authority in its
notice of action Authority proposes to take,
notified the applicant herein that it proposed to
"suspend your licence for a further period not
exceeding one year". In so doing it followed
precisely the wording of subparagraph (i) of
section 17(4)(b) of the Pilotage Act. Subsection
(4) reads in full as follows:
(4) Where the Authority receives a report pursuant to
subsection (3), it may
(a) approve or revoke the suspension under subsection
(1)
(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.
It will be perceived immediately that the
notification given to the applicant did not pro
vide him with any idea of the precise additional
period of suspension that it was proposed would
be levied against him, and in my opinion, the
failure so to do may well have constituted a
fatal defect in the notice, particularly when such
a defect is considered in conjunction with the
failure of the Authority to give reasons for the
action it proposed to take. I will discuss this
aspect of the defective notice later herein.
To appreciate the seriousness of the Authori-
ty's failure to notify the applicant of the precise
period of the proposed additional suspension
one must consider the scheme of the Act in
relation to its licensing powers, which powers
are set forth in sections 15 to 21 inclusive. In
general, no person shall have the conduct of a
ship within a compulsory pilotage area unless he
is a licensed pilot or, as a member of the com
plement of a ship, is the holder of a pilotage
certificate for that area. That licence or certifi
cate is issued by the Pilotage Authority for the
particular area and is subject to suspension in
the circumstances prescribed in section 17.
By subsection (1) of that section the Chair
man of the Authority may suspend a licence for
a period not exceeding fifteen days "where he
has reason to believe that the licensed pilot"
contravened certain provisions of the Act, does
not meet the qualifications required of a holder
of a licence, or, under paragraph (c), "has been
negligent in his duty". In this instance the Chair
man suspended the applicant's licence for a
period of fifteen days on the latter ground.
Section 17(2) prescribes that where the Chair
man has suspended the pilot's licence orally,
within forty-eight hours he must confirm to the
pilot the suspension, in writing, "together with
the reasons therefor". Subsection (3) then
requires that the Chairman shall, within forty-
eight hours of the suspension, report such sus
pension to the Authority. Subsection (4) then
applies and the Authority may either approve or
revoke the suspension made by the Chairman,
or suspend the licence for an additional period
under paragraph (b), or cancel the licence under
paragraph (c). However, as can be seen, no
action can be taken pursuant to paragraph (b) or
(c) of subsection (4) unless, before the suspen
sion authorized by the Chairman terminates, the
Authority gives written notice to the licensed
pilot of the action the Authority proposes to
take and the reasons therefor.
It will be noted that under subparagraph (i) of
paragraph (b) the expression "further period" is
used in conjunction with a maximum permissi-
ble period of suspension, namely one year,
while paragraph (b) uses the term "indefinite
period" in the circumstances there applicable.
In my opinion, Parliament, by using the word
"further" in subparagraph (i) and "indefinite" in
subparagraph (ii), clearly indicated that it
required the Authority in the circumstances to
provide precisely the period for which it pro
posed to suspend under the former. I believe
this is so for two reasons:
(a) In view of Parliament's use of the words
"indefinite period" in subparagraph (b)(ii), it is
clear that if it had desired to give the Authority
the right to impose an indefinite period for the
additional suspension under subparagraph (b)(i)
it would have used those words. Clearly, how
ever, by using the expression "further period"
in that subparagraph, in contradistinction to the
expression "indefinite period" in subparagraph
(b)(ii) it intended that the precise period of
extension would be specified. If this were not
so, the effect of subparagraph (b)(i) would be
identical with that of the other subparagraph of
paragraph (b) (with the exception of the imposi
tion of a time limitation under the former) not
withstanding the use of two different expres
sions, i.e. to enable the Authority to notify a
pilot of a further suspension in either circum
stance for an indefinite period. In my view such
a result would be contrary to sensible statutory
interpretation.
(b) Failure to indicate to the applicant the
further penalty with which he was faced left
him without the slightest indication of the gravi
ty with which the Authority viewed his purport
ed negligence. This seems to me to be totally
contrary to the whole scheme of section 17
which appears designed to require the Chairman
to make a full investigation of a pilot's conduct
on his own behalf as well as that of the Author
ity before he takes any action under section
17(1) and to apprise fully the pilot of the rea
sons for the action taken. The Authority has, by
reason of the stringent time restrictions imposed
on it, little or no time for its investigation and
merely then takes the further precise action
proposed, subject to the pilot's right to be heard
in respect thereto.
The second observation I wish to make is that
when the failure to give the pilot the increased
penalty in the notice is combined with the fail
ure of the Authority to notify the pilot of the
reasons for its action in increasing the proposed
period of suspension, which is again, in my
view, a mandatory requirement of subsection
(4) of section 17, the notice to the applicant
herein was fatally defective and deprived the
Authority of its jurisdiction to impose a further
penalty. As has been indicated, in my view, the
last words of the subsection, namely "and the
reasons therefor" relate to "the action" pro
posed to be taken, being an increased period of
suspension.
If this view is correct, one would have
expected that the notice of action would dis
close that the pilot's offence was of such a
serious nature that the Authority did not think
the original suspension was for a long enough
period, or that it had further evidence justifying
the increase or that it should be varied for any
other reason relating to the action proposed to
be taken. Therefore, even if the submission of
counsel for the respondent is accepted that the
words "the Authority has reason to believe you
were negligent in your duty in permitting the
ship Sun Diamond to collide with the ship Era-
wan" disclosed a sufficient reason for purposes
of the notification of suspension required by
section 17(2) to be communicated to the li
censed pilot, which I do not concede, they did
not relate to the proposed action to be taken as
required by subsection (4). Since there was no
such explanation, the pilot had no knowledge
whatsoever as to why the Authority proposed to
increase his suspension. The notice in this case
purporting to give the Authority jurisdiction
was, therefore, fatally defective and the order
for the additional suspension for these reasons
as well as those given by Thurlow and Pratte JJ.
must be set aside.
In reaching this conclusion I do not wish it to
be implied that I feel that the conduct of the
hearings as disclosed in the record before us
was in any way unfair to the applicant. In fact,
it appeared to me that the Authority went out of
its way to be fair to him. Had the applicant, with
the concurrence of his counsel, shown some of
the same spirit of cooperation at a much earlier
date than he ultimately did, the necessity for the
public hearing and these section 28 proceedings
would have been obviated in all likelihood.
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.