Citation: Sean Bockhold and Candace White v Canada (Minister of Transport), 2024 TATCE 38 (Review)

TATC File No.: RM-018-22 and RM-019-22

Sector: Marine

BETWEEN:

Sean Bockhold and Candace White, Applicants

- and -

Canada (Minister of Transport), Respondent

Heard by:	Videoconference on May 8-10, 2024
Before:	Sandra Attersley, Member
Rendered:	September 13, 2024

REVIEW DETERMINATION AND REASONS

Held: The Minister has not proven, on a balance of probabilities, that the applicants violated subsection 115(1) of the Canada Shipping Act, 2001.

The monetary penalties are dismissed.

I. Background

[1] On November 1, 2021, the Minister of Transport (Minister) issued a Notice of Violation – Marine Safety (Notice) to each applicant. The Notices were issued pursuant to section 229 of the Canada Shipping Act, 2001, SC 2001, c 26 (CSA). For each applicant, the penalties were assessed at $1,950 and the Notice stated the following:

On or about October 17, 2020, at approximately 0845 hours Pacific Daylight Savings time (PDT), you, [applicant], a passenger on board the vessel, Queen of Oak Bay, en route from Nanaimo, BC, to Horseshoe Bay, BC, failed to obey crew directions given in order to carry out the provisions of the Canada Shipping Act, 2001 (CSA 2001) or regulations, namely, the requirement to wear a face covering or provide proof of a medical exemption in compliance with Interim Order No. 3 Respecting Passenger Vessel Restrictions Due to the Coronavirus Disease 2019 (COVID-19) issued by the Minister of Transport, thereby contravening subsection 115(1) of the CSA 2001.

[2] On December 6, 2021, both applicants made an incomplete request for review of the Minister’s decision. On April 30, 2022, both applicants confirmed their request for review, which was considered a late application. On July 20, 2022, the Transportation Appeal Tribunal of Canada (Tribunal) accepted the late application and ruled that both files would be heard together.

II. ANALYSIS

A. Issue

[3] The Tribunal must determine if the applicants contravened subsection 115(1) of the CSA.

B. Legislative Framework

[4] Paragraph 229(1)(b) of the CSA states that if the Minister has reasonable grounds to believe that a person or a vessel has committed a violation, the Minister may issue a notice of violation.

[5] The Minister alleges that both applicants violated subsection 115(1) of the CSA, which states the following:

Every passenger on board a vessel shall comply with any direction that is given to them by the master or a crew member to carry out the provisions of this Act or the regulations.

[6] Section 10.1 of the CSA gives the Minister the authority to make an interim order if it believes that immediate action is required to deal with a direct or indirect risk to marine safety or to the marine environment.

[7] The Interim Order No. 3 Respecting Passenger Vessel Restrictions Due to the Coronavirus Disease 2019 (COVID-19) (Interim Order) states in part the following:

Passenger Vessels That Provide Essential Services and Ferry Vessels

Permission

6 (1) Sections 3 and 4 do not apply to a passenger vessel that provides essential services if

(a) the vessel, at all times, carries not more than 50 percent of the maximum number of passengers that it is certified to carry, as indicated on its inspection certificate or Passenger Ship Safety Certificate issued under the Vessel Certificates Regulations or on an equivalent certificate issued by a foreign government; or

(b) its authorized representative implements the measures to reduce transmission risks of COVID-19 set out in the Ship Safety Bulletin entitled Measures to Mitigate the Spread of COVID-19 on Passenger Vessels and Ferries, SSB No. 12/2020, published on April 17, 2020 by the Marine Safety Directorate of Transport Canada, as amended from time to time or as replaced.

…

Guidelines

7 The authorized representative and master of a passenger vessel that provides essential services must make reasonable efforts to implement and put in place the measures contained in the guidelines that are set out in the document entitled COVID-19: Guidance Material for Passenger Vessel and Ferry Operators published on April 17, 2020 by the Marine Safety Directorate of Transport Canada, as amended from time to time.

Ferry Vessels

8 The authorized representative and master of a ferry vessel must ensure that at least one of the requirements set out in section 6 is met and comply with the requirement set out in section 7. [Exhibit 2]

[8] For context, sections 3 and 4 of the Interim Order prohibit certain passenger vessels from navigating, mooring, anchoring or berthing in Canadian waters and they prohibit entering arctic waters.

[9] The Interim Order refers to Ship Safety Bulletin No. 12/2020 - Measures to Mitigate the Spread of COVID-19 on Passenger Vessels and Ferries (SSB 12/2020), which states in part the following:

Essential Passenger Vessels must:

● make reasonable efforts to implement and put in place measures to prevent the spread of COVID 19 in Transport Canada publication COVID-19: Guidance Material for Essential Passenger Vessel and Ferry Operators, including notifying passengers before boarding that they may be subject to a health check and requiring that passengers use a face covering to cover their mouth/nose, for use at times during their journey when they cannot physically distance from one another (e.g., in washrooms or other common areas).

…

MEASURES TO REDUCE TRANSMISSION RISK

For all Essential Passenger Vessels who do not reduce passenger load by 50%, the operator will need to demonstrate and confirm with Transport Canada (via email to the CMAC Secretariat at cmac-ccmc@tc.gc.ca) that appropriate mitigation measures are in place, based on the most recent advice provided by the Public Health Agency of Canada, such as:

● requesting that passengers stay in their vehicles on open car decks for the duration of the transit;

● requiring that passengers use a face covering to cover their mouth/nose, for use at times during their journey when they cannot physically distance from others (e.g., in washrooms or other common areas);

…

● enforcing mandatory physical distancing for all passengers on board (e.g., by eliminating entertainment events and anything else that would impact a 2 metre between passenger distancing rule);

…

[Exhibit 3]

[10] SSB 12/2020 also includes a section on passenger announcements in which Transport Canada (TC) requests that the crew of a passenger vessel or ferry vessel read out announcements before boarding and once passengers are on board. Sample language for such announcements is provided in Annex A (pre-boarding) and Annex B (once on board). This language is to be adopted based on local measures. The relevant part of the sample language is as follows:

(a) Annex A (pre-boarding) – During the voyage, you could be asked to wear a face covering that covers your mouth and nose when you are outside your vehicle and in situations where you cannot maintain two metres of physical separation.

(b) Annex B (on-board) – During the voyage, you are advised to wear a face covering that covers your mouth and nose when you are outside your vehicle and in situations where you cannot maintain two metres of physical separation.

[11] SSB 12/2020 also refers to a TC publication titled COVID-19: Guidance Material for Essential Passenger Vessel and Ferry Operators (Guidance Material) (Exhibit 4). The stated purpose of the Guidance Material is to provide guidance on notifying passengers that they should be subject to measures to prevent the spread of COVID-19. These measures include notifying passengers when purchasing their ticket and before boarding that they should have a face covering to cover their mouth/nose, for use at times during their journey when they cannot physically distance from others (e.g., in washrooms or other common areas). Passengers should also be notified that they may be subject to a health check before boarding. Crew should notify passengers by making announcements upon boarding and during the voyage, and announcements should also be made by other means, such as providing signage on the vessel.

[12] The suggested language in the Guidance Material, to be adapted locally, is similar to that contained in SSB 12/2020, but it includes the provision “[i]f you can’t wear a mask due to medical reasons, you may be asked to provide a medical certificate to confirm your exemption from wearing one” (Exhibit 4).

 

C. Did the applicants contravene subsection 115(1) of the CSA?

[13] The Minister must prove, on a balance of probabilities, that the applicants contravened subsection 115(1) of the CSA, namely that:

a. the applicants were on board the vessel on the date in question;

b. there was direction from the crew to follow COVID-19 mitigation measures; and

c. the applicants failed to comply with crew direction.

[14] The Minister’s position was that the applicants did not comply with the direction of the crew to follow COVID-19 mitigation measures put in place by BC Ferries in accordance with the CSA, regulations and policies. Two witnesses were called to give evidence in support of the Minister’s case: Cody Kennedy and Roberto Chiatto. Neither of the witnesses were on board the vessel on the day of the alleged violation.

[15] Mr. Kennedy is currently employed with the Vancouver Fraser Port Authority, but at the time relevant to this matter he was with TC as a multimodal enforcement investigator in the Pacific Regional Enforcement Unit. His duties and responsibilities were to investigate alleged offences under TC’s program legislation, including the CSA. He first heard about the events leading to the Notices on media reports on or about October 17, 2020, but he was not assigned to the matter until a later date. From the exhibits, it appears his investigation started in January 2021 and concluded in October 2021.

[16] Mr. Chiatto is employed with TC as a Civil Aviation airworthiness inspector. At the time of this incident, he was on assignment with the Pacific Regional Enforcement Unit as acting manager. In this role his duties included adjudicating files and making the final enforcement decisions recommended by investigators. Mr. Chiatto reviewed the investigation case reports prepared by Mr. Kennedy, signed off on them on October 29, 2021, and issued the Notices on November 1, 2021.

[17] The applicants represented themselves. They stated that their decision not to wear a face mask while on the vessel was medically grounded and that they made all reasonable efforts to physically distance from crew and other passengers. They did not call any witnesses, but they did testify on their own behalf. They also entered into evidence a written joint statement of their version of the occurrences on the voyage in question (Exhibit 20).

(1) Were the applicants on board the vessel on the date in question?

[18] The applicants admitted they were on the vessel on the voyage from Nanaimo to Horseshoe Bay. This is confirmed by photographs of the applicants, which formed part of Mr. Kennedy’s evidence (Exhibits 5 and 8] and from photos of the ferry lounge from the day in question, submitted by the applicants themselves (Exhibits 17 and 18). Therefore, I find that the applicants were on board the vessel on October 17, 2020.

(2) Was there direction from the crew to follow COVID-19 mitigation measures?

[19] Mr. Kennedy’s investigation included interviews with several crew members who were on board the vessel during the voyage, but only his summary of his interview with Mr. Tyler Edwards, acting Chief Steward on the vessel, was specifically relied on during his direct examination (Exhibit 7). An audio version of Mr. Edwards’ interview was disclosed to the applicants by the Minister and an unofficial transcription of this interview was entered into evidence by the applicants as Exhibit 13.

[20] Mr. Kennedy interviewed Mr. Edwards in April 2021. Referring to his notes of this interview (Exhibit 7), Mr. Kennedy testified that part of the Chief Steward’s duties included making passenger announcements regarding measures to mitigate the spread of COVID-19 in accordance with the Interim Order. Mr. Kennedy testified that Mr. Edwards advised him that he made live announcements at least 10 times during the voyage to this effect. No evidence was led as to the exact content of the announcements on the vessel’s public address system, but in his interview transcription, Mr. Edwards noted that some announcements, including the departure announcement, were read from a script and included reference to “orders from the governing bodies”. He also made a “broad announcement reminding people of their responsibility” (Exhibit 13).

[21] The applicants also gave evidence that shortly after boarding the vessel and when passing the Chief Steward’s office, Mr. Edwards came running after Ms. White and said “[y]ou have to put your mask on” and “stay away from other passengers” (Exhibit 20). Given the language in the Interim Order, in SSB 12/2020 and in the Guidance Material, I interpret this statement to mean Mr. Edwards was directing Ms. White to wear a face mask when she couldn’t physically distance from other passengers.

[22] I find that announcements were made on the vessel in accordance with the Interim Order and that these constituted direction from the crew to passengers of the requirement to wear face masks when outside of their vehicle and when unable to physically distance. As well, Ms. White received personal direction from a crew member to this effect. No evidence was produced by the applicants to suggest they did not hear the announcements made.

[23] Accordingly, I find that there was direction from the crew to follow COVID-19 mitigation measures, namely, to wear a face covering when not able to physically distance from others.

[24] I note that the Notice refers to the direction to wear a face mask without reference to physical distancing. I find that such a direction, if it had been given, would not have been in accordance with the Interim Order. In those circumstances, the applicants would not have been bound to follow that direction.

(3) Did the applicants fail to comply with directions from the crew to wear a face mask when unable to physically distance from others?

[25] Mr. Kennedy testified that, from his review of photographs and videos from BC Ferries, he believed the applicants were not physically distancing from other passengers. In particular, he referred to photo 11 of Exhibit 5, showing Mr. Bockhold standing at the Chief Steward’s office—unmasked—where it appears he is not physically distanced from other passengers. Under cross-examination, Mr. Kennedy also gave the opinion that the photograph entered as Exhibit 16 showed Ms. White not physically distanced from other passengers.

[26] The conclusions in Mr. Kennedy’s case reports referred to interviews with other crew members and passengers on the vessel, and BC Ferries conditions of carriage, as noted by exhibits listed in the Annex appended to his case reports (Exhibits 9 and 10). However, these exhibits were not part of the Minister’s evidence.

[27] The applicants admitted in their testimony that they were unmasked on the vessel, but they felt they were able to adequately physically distance from others during the voyage. Ms. White stated that she social-distanced and that there were not a lot of people on the ferry. She testified that she may have come within six feet of someone for a brief moment while moving through an area.

[28] Mr. Bockhold testified that when he first went to the office window, as shown in photo 10 of Exhibit 5, he was physically distanced from passengers seated behind him. He also stated that other passengers lining up behind him, as shown in photo 11, was out of his control. Mr. Bockhold noted that photos 10 and 11 are still photos captured from security video inside the Chief Steward’s office and that these do not provide the perspective required to determine exact distance.

[29] The applicants stated that their decision to not wear a face covering on the vessel was due to medical reasons. They testified that they did not have medical exemption documents with them on the vessel and that they were not asked nor given an opportunity to explain their medical status to BC Ferries’ crew members. They entered medical exemption letters as evidence, but these were both dated after October 17, 2020. Therefore, I will not consider them (Exhibits 21 and 22).

[30] Mr. Bockhold testified in cross-examination that the applicants had face coverings with them on the vessel and would have put them on if the circumstances required them to do so. Although no evidence was entered as to the passenger load on the voyage, it was the applicants’ view that the vessel was not crowded on this voyage and that they were able to physically distance. So, they thought there was no requirement to wear a face mask.

[31] In reviewing the evidence presented by the Minister and the applicants, I give more weight to the applicants’ testimony. They were present on the vessel and their testimony is first-hand. The Minister relied on the testimony of Mr. Kennedy, on his case reports and on his summary of the interview with Chief Steward Edwards. No actual witnesses from the vessel were presented by the Minister. The photos that Mr. Kennedy believes show the applicants not physically distanced on the vessel are not determinative. Consequently, I find, on the balance of probabilities, that the applicants maintained physical distance from crew and other passengers while on the vessel, except for brief moments in passing.

[32] I accept that the applicants did not wear face covering while on the vessel. However, I find that the Minister has not proven that they failed to physically distance from other passengers or crew. Therefore, the Minister has not proven that the applicants’ actions failed to follow the crew direction made in accordance with the Interim Order.

III. Determination

[33] The Minister has not proven, on a balance of probabilities, that the applicants violated subsection 115(1) of the Canada Shipping Act, 2001.

[34] The monetary penalties are dismissed.

 

September 13, 2024
(Original signed)
Sandra Attersley
Member
Representations
For the Minister:	Eric Villemure
For the Applicant:	Self-represented