TATC Decisions

Citation: Joyce v. Canada (Minister of Transport), 2010 TATCE 12 (review)

Heard at Corner Brook, Newfoundland and Labrador, on February 22, 2010

Held: The Minister of Transport did not prove, on the balance of probabilities, that David Richard Joyce discharged a prescribed pollutant, and thereby contravened section 187 of the Canada Shipping Act, 2001. Therefore, I dismiss the monetary penalty of $1 250, as imposed by the Minister.

File Nos. MA-0022-38

MA-0021-33

I. BACKGROUND

A. File No. MA-0022-38 (M/V Nicole Daniel)

[1] On August 19, 2009, the Minister of Transport issued a Notice of Violation ("Notice") to Gauvin & Noel Compagnie Ltée for a violation of section 187 of the Canada Shipping Act, 2001 ("Act"). In the portion of the Notice headed "Vessel Particulars", the name of the vessel is specified as the Nicole Daniel. In the portion of the Notice headed "Authorized Representative Particulars", the name of the authorized representative is specified as Gauvin & Noel Compagnie Ltée. It is alleged that on or about June 21, 2009, the M/V Nicole Daniel discharged a prescribed pollutant at or near Cape St. George, Newfoundland and Labrador.

[2] Schedule A of the Notice states the following:

On or about June 21, 2009, at or near Cape St. George in the province of Newfoundland and Labrador, M/V "Nicole Daniel", Official number 344955, discharged a prescribed pollutant thereby contravening Section 187 of the Canada Shipping Act, 2001.

Penalty $6,000.00

[3] On September 15, 2009, the Applicant's representative filed a request for a review with the Transportation Appeal Tribunal of Canada ("Tribunal").

B. File No. MA-0021-33 (David Richard Joyce)

[4] On August 20, 2009, the Minister of Transport issued a Notice to the Applicant, David Richard Joyce, for a violation of section 187 of the Act. It is alleged that, on or about June 21, 2009, Mr. Joyce discharged a prescribed pollutant at or near Cape St. George.

[5] Schedule A of the Notice of Violation states the following:

On or about June 21, 2009, at or near Cape St. George in the province of Newfoundland and Labrador, David Richard Joyce, being the master of M/V "Nicole Daniel", Official number 344955, discharged a prescribed pollutant thereby contravening Section 187 of the Canada Shipping Act, 2001.

Penalty $1,250.00

[6] On September 15, 2009, the Applicant's representative filed a request for a review with the Tribunal.

II. STATUTES, REGULATIONS AND POLICIES

[7] Section 187 and paragraph 190(1)(a) of the Act provide the following:

187. No person or vessel shall discharge a prescribed pollutant, except in accordance with the regulations made under this Part or a permit granted under Division 3 of Part 7 of the Canadian Environmental Protection Act, 1999.

190.(1) The Governor in Council may, on the recommendation of the Minister, make regulations respecting the protection of the marine environment, including regulations

(a) prescribing pollutants for the purpose of sections 187 and 189 and respecting the circumstances in which such pollutants may be discharged;

. . .

[8] Subsection 1(1) of the Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals, SOR/2007-86, ("Pollution Regulations"), states:

1.(1) The following definitions apply in these Regulations.

. . .

"fishing zone" has the same meaning as a fishing zone of Canada described in the Fishing Zones of Canada (Zones 1, 2 and 3) Order, Fishing Zones of Canada (Zones 4 and 5) Order and Fishing Zones of Canada (Zone 6) Order made under the Oceans Act.

. . .

"oily mixture" means a mixture with any oil content.

. . .

"Section I waters" means fishing zone 1, 2 or 3 or any portion of the internal waters of Canada that is not within a shipping safety control zone.

. . .

"Section II waters" means any portion of the territorial sea or of fishing zone 4, 5 or 6 that is not within a shipping safety control zone.

…

[9] Subsection 3(1),  paragraph 4(a) and sections 40, 41 and 42 of the Pollution Regulations state as follow:

3.(1) Unless otherwise specified, these Regulations apply to

(a) a Canadian ship anywhere; and

(b) a ship that is not a Canadian ship in waters under Canadian jurisdiction.

4. For the purposes of Part XV of the Act, the following substances are prescribed to be pollutants:

(a) oil and any oily mixture;

. . .

40. Subject to sections 8, 41 and 42, no ship shall discharge and no person shall discharge or permit the discharge of an oil or oily mixture.

41. The discharge of an oily mixture from machinery spaces is authorized from any ship in Section I waters if

(a) the ship is en route;

(b) none of the oily mixture

(i) originates in cargo pump room bilges, or

(ii)  is mixed with oil cargo residues;

(c) the discharge is processed through oil filtering equipment that

(i) produces an undiluted effluent that has an oil content of no more than 15 ppm, and

(ii) triggers an alarm and a discharge-stopping device as soon as the oil content in the effluent exceeds

(A) 5 ppm, where discharged in inland waters of Canada, or

(B) 15 ppm, where discharged in fishing zone 1, 2 or 3 or in those internal waters of Canada that do not include inland waters of Canada; and

(d) the discharge does not contain chemicals or any other substance introduced for the purpose of circumventing the detection of concentrations of oil that exceed the oil content limits specified in this section.

42.(1) The discharge of an oily mixture from the machinery space bilges of a ship in Section II waters and a Canadian ship referred to in paragraph 39(b) is authorized if

(a) the ship is en route;

(b) in the case of an oil tanker, none of the oily mixture

(i) originates in cargo pump room bilges, or

(ii) is mixed with oil cargo residues;

(c) the discharge is processed through oil filtering equipment that produces an undiluted effluent that has an oil content of no more than 15 ppm; and

(d) the discharge does not contain chemicals or any other substance introduced for the purpose of circumventing the detection of concentrations of oil that exceed the oil content limit specified in paragraph (c).

III. AGREEMENT

[10] There is agreement between the parties that the authorized representative of the M/V Nicole Daniel is Gauvin & Noel Compagnie Ltée and that the vessel was properly served with the Notice.

IV. ELEMENTS TO BE PROVEN

[11] Based on the Notices, I identified the following elements to be proven by the Minister to satisfy his cases:

A. File No. MA-0022-38 (M/V Nicole Daniel)

1. There was a discharge of a prescribed pollutant.
2. The discharge originated from the M/V Nicole Daniel.
3. The discharge was in excess of that permitted by the Pollution Regulations.

B. File No. MA-0021-33 (David Richard Joyce)

1. There was a discharge of a prescribed pollutant.
2. The discharge originated from the M/V Nicole Daniel.
3. The discharge was in excess of that permitted by the Pollution Regulations.
4. David Richard Joyce caused the discharge.

V. EVIDENCE

A. Minister of Transport

(1) William Robert Coffin

[12] At the time of the alleged violation, William Robert Coffin was employed by Transport Canada, Marine Safety, in Corner Brook, Newfoundland and Labrador. He testified he attended on board the M/V Nicole Daniel sometime between June 26 and 28, 2009. He stated he had spoken to the Master and members of the crew during that visit, and Mr. Joyce had indicated he was the Master of the M/V Nicole Daniel on June 21, 2009, the date of the alleged violation. He testified he had asked the ship's crew if they had seen any oil on the day in question, and they had replied in the negative.

[13] During cross‑examination, Mr. Coffin stated that during his visit, he had inspected the M/V Nicole Daniel. When asked if he had observed any leaks on either the M/V Nicole Daniel or her skiff ("workboat"), he replied in the negative. He stated his visit related to the alleged incident of June 21, 2009, and as far as he understood, this was the first time the Master had been informed of the alleged incident.

(2) Cameron Andersen

[14] Cameron Andersen is employed with Provincial Airlines, as a pilot of an aircraft that performs surveillance flights for the Department of Fisheries and Oceans and for Transport Canada. He has been employed in the offshore surveillance division since 2008.

[15] Mr. Andersen testified that on June 21, 2009, while on a routine patrol near the Port au Port Peninsula, and at the request of a fisheries observer on board his aircraft, he flew close to a fishing vessel that was later identified as the M/V Nicole Daniel. At that time, the workboat was noticed to be coming out from the shore. Mr. Andersen stated that, upon closer observation, he noticed what appeared to be an oily substance coming from the workboat. An unidentified person on board the aircraft took photographs and a video. Seventeen photographs were entered as evidence (Exhibits M1-1 to M1-17).

[16] Mr. Andersen identified Exhibits M1-3 and M1-16 as showing an oily substance. He also identified Exhibits M1-8 and M1-9 as showing an oily substance behind the workboat, as it approached the M/V Nicole Daniel. In Exhibit M1-12, he identified a trail of an oily substance astern of the workboat. In Exhibits M1-13 and M1-14, he identified a trail of an oily substance that he believed came from the workboat.

[17] When asked as to what he believed the substance on the water to be, he stated he could not tell what type of a hydrocarbon it might be, but felt it was definitely an oily substance.

[18] During cross‑examination, Mr. Andersen could not say how long he had been on patrol that day but he indicated that a normal fisheries surveillance flight would last from three and a half to five hours. He stated there were no other vessels within ten miles of the two vessels in question and that he could not measure the distance to the closest vessel as he did not have a layout of his flight profile with him. When asked if he observed any substance coming from the M/V Nicole Daniel either before or after the workboat was loaded on board and if he had witnessed anyone dumping anything from the workboat, he replied in the negative.

[19] Mr. Andersen testified that a video had been taken and was in St. John's, Newfoundland and Labrador, where the evidence is kept. He indicated that he was not the person who took the photographs and that he was not aware of any samples being collected nor if a clean-up order had been issued.

[20] Mr. Andersen stated he was not qualified to indicate how many litres the spill was, adding that there was a formula available to determine the amount based on the dimensions of the slick.

[21] Mr. Andersen stated that, at the time of the incident, he would have had less than two years experience in the surveillance division and he had no formal training in the observation of oil on water. He uses a pamphlet with pictures of different types of pollution to determine if there is something out of the ordinary on the water, and if there is, it is referred to trained personnel.

[22] Mr. Andersen indicated that, in the past, there might have been 10 to 15 times when he saw substances on the water during surveillance flights but he was not qualified to determine what those substances might have been. He agreed he was not qualified to testify as to how oil reacts when it is on the water, or how it spreads, or anything of that nature.

[23] When asked how oil or gasoline would appear when discharged into waters from a vessel the size of the workboat, Mr. Andersen replied it would look like what he had witnessed on other occasions. He identified Exhibits M1-12 and M1-14 as showing the substance appearing immediately behind the workboat. Although he agreed there was a distance between the workboat and the substance in both exhibits, he indicated that Exhibit M1-12 could be deceiving in this regard.

[24] Mr. Andersen confirmed that Exhibit M1-6 shows the workboat loaded in position on board the M/V Nicole Daniel. When it was loaded on board, he did not observe any oily substance coming from either the workboat or the M/V Nicole Daniel.

[25] During re‑examination, Mr. Andersen indicated the closest vessel to the two vessels in question was more than five miles away. It was his opinion that no other vessel could have released an oily substance in the locale.

B. Applicants

(1) David Richard Joyce

[26] Mr. Joyce identified himself to have been the Captain of the M/V Nicole Daniel on June 21, 2009. He stated that he had held that position for three years and has been a ship's Captain for forty years.

[27] On the day in question, he was three days out of Meteghan, Nova Scotia bound for Bonne Bay, Newfoundland and Labrador, and was low on fresh water, having encountered rough weather that had caused several containers of drinking water to be lost overboard. Just beyond Cape St. George, he was aware of a fresh water stream from which he would be able to refill some of his drinking water containers. The workboat was sent to the stream with at least two of his crew members. While the workboat was away from his ship, he noticed the surveillance aircraft, as it passed overhead several times. He testified that no one from the plane contacted him. When asked if he had observed anything in the water, he replied in the negative.

[28] Mr. Joyce testified the workboat carried no contaminants or pollutants other than diesel fuel. The diesel fuel was contained in two tanks, port and starboard aft, each tank being approximately half-full. When asked how leakage from the fuel tanks could find its way to the water, Mr.  Joyce explained that the tanks are not integral to the hull of the workboat. Any leakage would collect in the bilges, and in order to get into the water, it would have to be pumped overboard. He was not aware of any leakage, and he testified that after Mr. Coffin had informed him of the alleged incident, he had inspected the workboat and had found no leaks. He

explained that a leak of diesel fuel would be noticeable by smell and he would have noticed it during his inspection.

[29] Mr. Joyce explained there was a tide rip in the vicinity of where the M/V Nicole Daniel had stopped on the day in question, and onshore, approximately one kilometre away, there is an oil well. He further added that the alleged occurrence was at the height of the capelin fishery and earlier that day, he suspected there would have been several fishing vessels in the vicinity. He testified that to the best of his knowledge, nothing was discharged from either the workboat or the M/V Nicole Daniel.

[30] During cross-examination, Mr. Joyce agreed the workboat forms part of the equipment of the M/V Nicole Daniel. When asked if there was an automatic pump on board the workboat to pump out the bilges, he replied in the negative, stating it was an electric, hand actuated pump.

[31] Mr. Joyce indicated that there seemed to be some kind of colouration on the left-hand side of Exhibit M1-12. He explained that in his 40 years of going to sea, he had never seen oil or fuel in a stream as shown on Exhibit M1-13 but rather that it spreads extensively across the water. The only time he has seen something similar is ". . . in a tide rip where things push together".

[32] When asked about Exhibit M1-8 that shows the workboat bow on and tight to the stern of the M/V Nicole Daniel, and what the Minister's representative described as " . . . white stuff coming off the back . . . " of the workboat, Mr. Joyce asked if that was a slick or a propeller wash. It did not appear to be a slick to him, as it was not spread out over the water.

[33] During re-examination, Mr. Joyce described the operation of loading the workboat up over the stern of the M/V Nicole Daniel. He indicated it involves a lot of manoeuvring on the part of the workboat, and therefore a lot of turbulence in the water astern.

VI. ARGUMENTS

A. Minister of Transport

[34] The Minister's representative states that, according to the evidence, a discharge occurred from the workboat and there is no allegation it originated from the M/V Nicole Daniel. He states the workboat forms part of the equipment of the M/V Nicole Daniel and that it was operated by crew members from that vessel. In his opinion, a tide rip is an unlikely explanation as he feels that the substance on the water laid in the track of the workboat.

[35] The Minister's representative asserts that, while there are no certificates of analysis and no samples were taken, there have been cases in the Provincial Courts of Nova Scotia and Newfoundland and Labrador where aerial photographs have been the sole evidence to establish that a spill of a prescribed pollutant has occurred. It is his opinion, due to the nature of the sheen on the water that the substance must be some form of hydrocarbon.

[36] The Minister's representative considers this to be a serious offence. As regards the amount of the sanction, the minimum penalty permitted by the Administrative Monetary Penalties Regulations, SOR/2008‑97, ("AMPRs"), in the case of an individual is $1 250. With regard to the vessel, Transport Canada's policy sets the minimum penalty at $6 000. An amount of $6 000 is appropriate, given the nature of the problems associated with pollution and the approach the courts have taken.

B. Applicants

[37] The Applicants' representative states that the photographs show something in the water but submits that the substance has not been determined. There was no analysis, and therefore, Mr. Joyce could not compare that substance to what he had on board his workboat. She referred to Mr. Andersen's testimony where he stated he was not qualified to identify the substance, but only could say it was out of the ordinary and that he normally gets someone else involved, who would be able to testify as to what it was.

[38] The Applicants' representative submits there is no evidence that the substance was a pollutant. She puts forward the possibility of a tide rip bringing something together in the area in question, as well as the possibility of the workboat passing through a pre‑existing substance on the water. She submits the photographs show a separation between the substance and the workboat.

[39] With regard to the amount of sanction, the minimum amount is suggested because, if it was a spill, it appears small; there was no evidence to the size of the alleged spill. The lack of contact by the surveillance aircraft, in not informing the vessel of what was believed to be a spill, indicates that it was not significant. Additionally, there is no indication of a deliberate discharge.

VII. EVIDENCE, LAW AND POLICY ANALYSIS

[40] Subsection 3(1) of the Pollution Regulations applies to all Canadian ships and to non-Canadian ships in waters under Canadian jurisdiction. Paragraph 4(a) of the Pollution Regulations prescribes oil and oily mixtures as being pollutants.

[41] There has been no evidence presented as to the waters, Section I or Section II, in which the alleged incident occurred.

[42] Sections 41 and 42 of the Pollution Regulations both permit the discharge of an oily mixture into Section I and II waters respectively if the ship is enroute, the discharge is processed through oil filtering equipment and the oil content is below a certain stated amount.

[43] Mr. Andersen is the only witness whose testimony supports the existence of a slick of a polluting substance in the water in the vicinity of the workboat. He has testified he recognized the substance in the water near the workboat as being an oily substance. I do not give his testimony on the nature of the substance the weight I would to the testimony of a person who is qualified as an expert in the field of aerial observation of oil on water. However, one need not be a recognized expert in the identification of oil on water to give an opinion, as I feel most people can distinguish water having oil upon it from water having no oil upon it. I do believe, however, that one must be able to give reasons for concluding that there is oil on water, and that reasoning, coupled with that person's experience in seeing oil upon water, will determine the weight I give to that person's testimony.

[44] Under direct examination, Mr. Andersen stated that he had seen oil spills from vessels "On a few occasions . . .". He was not asked to and did not give a description of the appearance of what he referred to as the substance and as the oily substance. During cross‑examination, he was asked to explain how an oily substance acts upon water but he gave no explanation. When asked if he could testify that what he saw was what one would expect to see, he replied only that it looked like what he had seen before. And when asked what an oily substance on water normally looks like and what happens to it, he gave no explanation.

[45] Mr. Andersen was asked as to the extent of his training in the aerial observation of oil on water. He replied that he has no formal training and that he relies on a sheet of photographs. At the time of the alleged discharge, he had been involved in the surveillance division for less than two years and he has seen, 10 to 15 times, substances that he states he was not qualified to identify. He stated he has limited training and that the sighting of an unusual substance is referred to someone else for identification. No evidence was presented to indicate that a person with more experience than Mr. Andersen was able to identify the substance shown in the photographs as being an oily substance.

[46] Upon close examination of all of the photographs (Exhibit M1-1 to M1-17), I believe only six photographs (Exhibit M1-3, M1-4, M1-5, M1-12, M1-13, and M1-14) show a substance upon the water. I do not possess the expertise to be able to look at those six photographs and identify the substance as being an oily substance. Other than from Mr. Andersen, there has been no testimony that an oily substance appears in any of the photographs. I find Mr. Andersen to be a credible witness. However, his lack of training and his limited experience in the aerial identification of oil on water, coupled with his lack of explanation during cross-examination, leads me to give little weight to his testimony that the substance was an oily substance. Therefore, I conclude that the Minister has failed to prove, on the balance of probabilities, that there was a discharge of a prescribed pollutant, the first element of the violations against both applicants. 

[47] There has been no evidence presented that a prescribed pollutant was discharged from the M/V Nicole Daniel. The Minister's witness, Mr. Andersen, has testified that he saw no pollutant associated with the M/V Nicole Daniel. His testimony indicates that the alleged pollutant originated only from the workboat. He testified that after the workboat was loaded on board the M/V Nicole Daniel, he did not see any further pollutant.

[48] The Minister's representative submits the workboat is part of the M/V Nicole Daniel's equipment and, therefore, a discharge from the workboat qualifies as a discharge from the M/V Nicole Daniel. While the workboat might be associated with the M/V Nicole Daniel, it was separate from the ship at the time of the alleged discharge. It was engaged on a voyage between the shore and the ship. The fact that it was separate from the ship at the time of the alleged discharge, and not involved in fishing and somehow tethered to the M/V Nicole Daniel, qualifies it as a vessel on a voyage in its own right. To suggest that the M/V Nicole Daniel has made the alleged discharge is to suggest one can hold one vessel vicariously responsible for the actions of another vessel. There is no allowance for this in the legislation.

[49] Therefore, I conclude the Minister has failed to prove, on the balance of probabilities, that the alleged discharge came from the M/V Nicole Daniel, the second element of the violations against both applicants.

[50] Mr. Andersen has testified he associated a substance on the water with the workboat, as it proceeded from the shore towards the M/V Nicole Daniel. As sections 41 and 42 of the Pollution Regulations permit the discharge of an oily substance within certain limits while a vessel is en route, the Minister has to prove the discharge, that he believes to be an oily discharge, was beyond the allowable limits. No evidence has been presented that the amount of substance was in excess of that permitted by sections 41 and 42 of the Pollution Regulations.

[51] Based on the foregoing, I conclude the Minister has failed to prove, on the balance of probabilities, that the alleged discharge was beyond the limits permitted by the Pollution Regulations, the third element of the violation against both Applicants.

[52] Mr. Joyce has testified he was on board the M/V Nicole Daniel at the time of the alleged incident. I have found him to be a credible witness. No evidence has been submitted by the Minister that Mr. Joyce was on board the workboat. This, coupled with the reasoning above, in paragraphs 41 to 46, regarding the first element, causes me to determine that the Minister has failed to prove, on the balance of probabilities, that Mr. Joyce caused the alleged discharge, the fourth element in the violation against Mr. Joyce.

VIII. DETERMINATION

A. File No. MA-0022-38 (M/V Nicole Daniel)

[53] The Minister did not prove, on the balance of probabilities, that the M/V Nicole Daniel discharged a prescribed pollutant, and thereby contravened section 187 of the Canada Shipping Act, 2001. I therefore dismiss the monetary penalty of $6 000, as imposed by the Minister.

B. File No. MA-0021-33 (David Richard Joyce)

[54] The Minister did not prove, on the balance of probabilities, that David Richard Joyce discharged a prescribed pollutant, and thereby contravened section 187 of the Canada Shipping Act, 2001. I therefore dismiss the monetary penalty of $1 250, as imposed by the Minister.

May 5, 2010

C. Michael Keefe

Member