Federal Court of Appeal Decisions

Date: 20050114

Docket: A-81-04

Citation: 2005 FCA 10

CORAM :       DESJARDINS J.A.

NADON J.A.

PELLETIER J.A.

BETWEEN:

                                                NAVIGATION MADELEINE INC.

                                                                                                                                          Appellant /

                                                                                                                                               Plaintiff

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                             

                                                                                                                                      Respondent /

                                                                                                                                           Defendant

                                                                           and

                                                       LAURENTIAN PILOTAGE

                                                                  AUTHORITY

                                                                                                                                      Respondent /

                                                                                                                                           Defendant

                                  Hearing held at Montréal, Quebec, on December 7, 2004.

                                Judgment rendered at Ottawa, Ontario, on January 14, 2005.

REASONS FOR JUDGMENT:                                                                            DESJARDINS J.A.

CONCURRED IN BY:                                                                                                  NADON J.A.

                                                                                                                                 PELLETIER J.A.

Date: 20050114

Docket: A-81-04

Citation: 2005 FCA 10

CORAM :       DESJARDINS J.A.

NADON J.A.

PELLETIER J.A.

BETWEEN:

                                                NAVIGATION MADELEINE INC.

                                                                                                                                          Appellant /

                                                                                                                                               Plaintiff

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                             

                                                                                                                                      Respondent /

                                                                                                                                           Defendant

                                                                           and

                                                       LAURENTIAN PILOTAGE

                                                                  AUTHORITY

                                                                                                                                      Respondent /

                                                                                                                                           Defendant

                                                    REASONS FOR JUDGMENT

DESJARDINS J.A.

[1]                The Court has before it an appeal from a judgment by Blais J., motions judge, dismissing the application for a declaratory judgement filed by the appellant. The trial judge's judgement is reported at (2004), 245 F.T.R. 88.

[2]                The defendant Laurentian Pilotage Authority (the L.P.A.) is refusing to acknowledge that the vessel C.T.M.A. Vacancier (the Vacancier), the property of the appellant, is a ferry within the meaning of the Pilotage Act, R.S.C. 1985, c. P-14 (the Act) and the Laurentian Pilotage Authority Regulations, C.R.C. c. 1268 (the Regulations).

[3]                Essentially, the issue is whether the Vacancier is a ferry operating "in the passenger carrying trade on a regular schedule between two or more terminals", in accordance with paragraph 4(3)(b) of the Regulations. If it corresponds to that definition, as the appellant maintains, the ship is exempt from compulsory pilotage. It it does not, it is subject to the requirement.

I.           Applicable legislation

[4]                The applicable legislation must be considered at the outset.

[5]                The Act creates pilotage authorities, with the object of operating, maintaining and administering an efficient pilotage service within a given region in the interests of safety. Section 18 of the Act states the following:

[6]                In the case of the L.P.A., it is responsible for the following region (see schedule to Act):

[7]                Under section 20 of the Act, the Authority is authorized, by regulations necessary for the attainment of its objects, to create compulsory pilotage areas, ships or classes of ships subject to compulsory pilotage and to prescribe the circumstances under which compulsory pilotage may be waived. That section reads in part as follows:

[8]                The Regulations describe the compulsory pilotage area as follows (Schedule 1 of Regulations):

[9]                Section 4 of the Regulations provides the classes of ship subject to compulsory pilotage

and those which are exempt from it. That section provides the following:

[10]            Accordingly, ferries operating in the passenger carrying trade on a regular schedule between two or more terminals are exempt from compulsory pilotage.

[11]            Neither the Act nor the Regulations defines the word "ferry" in paragraph 4(3)(b) of the Regulations.

II.         Facts - Expert reports

[12]            The Vacancier operates from May to December between the ports of Montréal and Cap-aux-Meules in the Îles-de-la-Madeleine, with stops at Québec and Matane. It can carry up to 600 passengers in addition to 250 vehicles. It receives payment for doing so and operates on a regular schedule. The ship also contains cabins and restaurants. According to the plaintiff's expert witness, Jean-Paul Turcotte, it is the only boat subsidized by the Government of Quebec which provides a link between the Îles-de-la-Madeleine and Québec. According to that expert witness, it fulfills an important need for the island community, that of providing a link with the mainland. The Vacancier is authorized to operate a ferry service pursuant to a permit for the transport of passengers by water issued by the Commission des Transports du Québec. When it was purchased, the Vacancier was classified as "Passengers/Ro-Ro Cargo/Ferry" in Lloyd's Register of Ships for 1986-87. This vessel travels in the compulsory pilotage area about 76 times a year.

[13]            According to the respondents' expert witness, Pierre Boisvert, even though strictly speaking the Cap-aux-Meules-Matane section can be described as ferrying, from Matane onwards the ship travels along the banks of the St. Lawrence. At that point, therefore, it is not ferrying. Moreover, pilotage becomes compulsory from Matane onwards, or specifically from Les Escoumins. The word [TRANSLATION] "ferry", the expert witness added, especially on the St. Lawrence, applies to a ship which travels over a body of water so as to link both sides of the river. An exemption from compulsory pilotage is given to ferries in this area because they do not have to use the navigation channel over the compulsory pilotage distance from Les Escoumins to Montréal. According to the expert witness, this fundamental difference between river ferries and the Vacancier explains the L.P.A.'s decision not to recognize the Vacancier as a ferry.

[14]            The appellant and its expert witness Jean-Paul Turcotte made much of the fact that in British Columbia the ship Queen of the North navigates over a long distance in the Inside Passage. The boat is exempt from the compulsory pilotage requirement, although its route and its operation _ as a carrier of people and vehicles _ are similar to those of the Vacancier.

[15]            In the submission of the respondents' expert witness, Pierre Boisvert, it is neither possible nor desirable to compare regulations and conditions for exemption from one region to another of Canada. Although the two ships and the services they offer seem to be similar, the reasons why the Pacific Pilotage Authority chose to exempt the Queen of the North from compulsory pilotage involve with the assessment which it made of the safety and dangers of navigation. In the St. Lawrence, navigation is especially difficult, and this is why the L.P.A. created two compulsory pilotage areas.

III.        Analysis

[16]            The appellant submitted that in order to give meaning to the words "operating in the passenger carrying trade on a regular schedule between two or more terminals", reference must be made to sections 12 and 15 of the Interpretation Act, R.S.C. 1985, c. I-21, which indicate that legislation should be interpreted in light of legislation adopted by the same legislature on the same subject matter. It referred to the following examples:

·     Section 1 of the "Fee Structure _ Fees to be Paid for Marine Navigation Services provided by the Canadian Coast Guard", adopted pursuant to section 47 of the Oceans Act, S.C. 1996, c. 31:

·      The St. Clair and Detroit River Navigation Safety Regulations, SOR/84-335, adopted pursuant to the Canada Shipping Act, R.S.C. 1985, c. S-9, paragraph 7(1)(a):

·      The Ship Fumigation Regulations, SOR/89-106, adopted pursuant to the Canada Shipping Act, R.S.C. 1985, c. S-9 (definition of word "short run ferry"):

·      and the Great Lakes Pilotage Regulations, C.S.C., c. 1266, adopted pursuant to the Act:

[17]            The appellant maintained that the following requirements were contained in each of these statutes: transportation of passengers or goods, a regular schedule and termini or distant points on the most direct maritime route. In its submission, the Vacancier meets these requirements.

[18]            For my part, I find that these examples of legislation cannot be used as a basis for interpreting of the word "ferry". They are not a definition of the word "ferry" and the provisions suggested are not uniform, but vary from one piece of legislation to another.

[19]            In his text The Interpretation of Legislation in Canada (3d ed., Les Éditions Thémis, p. 364), Professor André Côté agrees with the statement of Elmer A. Driedger, recommending the following "modern principle" of interpretation:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[Emphasis added.]

[20]            In this case, the scheme of the Act, the object of the Act and the intention of Parliament are not determining factors. The Regulations were adopted by the L.P.A. in the course of carrying out its mission, which is to ensure the safety of navigation, but at the same time, under those Regulations, ferries are exempt from compulsory pilotage. Accordingly, the presence of a ferry is not in itself a danger to navigation. It must still be a ferry within the meaning of the Regulations.

[21]            Accordingly, we must look at the actual wording of paragraph 4(3)(b) of the Regulations to determine the scope of the exemption. According to Driedger and Côté, the words used are to be given their ordinary and grammatical sense (see also Thompson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, paragraph 24).

[22]            I would also refer to the words of Lord Atkinson in City of Victoria v. Bishop of Vancouver Island, [1921] A.C. 384, at 387, cited by André Côté at page 369 of his text, supra:

In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.

[23]            Especially in its English version, paragraph 4(3)(b) of the Regulations refers to the "passenger carrying trade", and thus the movement of passengers. Automobiles, bicycles, baggage and so on become incidental to the movement of persons. The word "terminus", which differs from the word "harbour", reflects the importance placed on the movement of persons from one bank to the other. Further, that movement must take place on a regular schedule.

[24]            This is the background against which the meaning of the word "ferry" must be determined.

[25]            The choice of the words used in that paragraph corresponds to the usual meaning of the word "ferry", namely a ship which extends the roadway over a river.

[26]            This meaning is found in the following definitions or descriptions.

(a) Black's Law Dictionary, 1968, s.v. "ferry".

Ferry: A place of transit across a river or arm of the sea...A continuation of the highway from one side of the water over which it passes to the other, for transportation of passengers or of travellers with their teams and vehicles and such other property as they may carry or have with them.

(b) Trésor de la langue française, tome seizième, 1994, s.v. "traversier, ière":

[TRANSLATION]

Ferry boat. Boat used to make return journeys between two close points.

(c) Le Grand Robert de la langue Française, 1992, s.v. "traversier, ière":

[TRANSLATION]

2. N.m. Ferry. (1880): Canada. Ship used to provide return transport of vehicles from one bank of a river or arm of the sea to another.

(d) The 1999 Canadian Encyclopedia: World Edition, CD-ROM, Edmonton, Alberta: McClelland & Stewart, s.v. "ferry":

ferry: boat providing passage over a river, lake, or other body of water for passengers, vehicles, or freight; the term is also applied to the place where the crossing is made and, by extension to overwater train or airplane transit... Ferries were especially important in the days before engineers learned to construct permanent bridges and tunnels traversing large bodies of water.

(e) The Canadian Encyclopedia of the Canada Historica Foundation (2004), on ligne: http://www.canadianencyclopedia.ca/, s.v. "traversier":

Ferries are vessels that carry passengers and vehicles across a body of water such as a lake, river or harbour, on a regular schedule.                      . . . . . The distinction between ferries and other vessels has become less clear during the past decade.

Les traversiers sont des bateaux qui transportent selon un horaire régulier passagers et véhicules d'une rive à l'autre d'un lac, d'une rivière, d'un fleuve ou d'un port. . . . . . La distinction entre les traversiers et les autres navires est moins évidente depuis la dernière décennie.

[27]            Decisions by the courts have echoed this:

(a) Prince Edward Island v. Canada, [1976] 2 F.C. 712 at paragraph 45, per Cattanach J.:

An ancient definition of the word "ferry" was the right of ferrying men, animals and goods across a body of water and of levying a toll for so doing. Obviously the animals include those animals which carried the person either on its back or in a vehicle which the animal draws. In this day and age the horse and horse-drawn vehicle have been replaced by the automobile and in my view the language of the Order in Council must be interpreted as meaning that a ferry service for the conveyance of passengers is to include the automobile of the passenger, just as it would include the passenger's baggage and like appendages.

Autrefois, le mot "passage" (ferry) signifiait le droit de faire passer un cours d'eau à des hommes, des animaux et des biens contre péage, y compris bien entendu les montures et les animaux attelés au véhicule du passager. Aujourd'hui, le cheval et le véhicule hippomobile sont remplacés par l'automobile; d'après moi, les termes de l'arrêté en conseil doivent être interprétés comme signifiant qu'un service de traversiers pour le transport de passagers doit comprendre leurs automobiles, au même titre que les bagages et autres accessoires des passagers.

(b) Dinner v. Humberstone (1896), 26 S.C.R. 252, at 254:

The ferry is a highway, and thus not within the jurisdiction of the local legislature, nor properly established if it is.

[28]            The word "ferry" thus means a ship which, replacing a road, provides communication over water between two points of land. I feel that this meaning must prevail.

[29]            In federal legislation, I note that the definition of "ferry vessel" ("transbordeur") contained in section 2 of the Regulations Respecting the Construction of Hulls of Steamships, C.R.C., c. 1431, adopted pursuant to the Canada Shipping Act, R.S.C. 1985, c. S-9, corresponds most closely to the usual meaning given to the word "ferry". It states:

"ferry vessel" means any vessel, having provision only for deck passengers and for vehicles, that is operated on a short run on a schedule between two points over the most direct water route and offers a public service of a type normally attributed to a bridge or tunnel . . . (transbordeur)

« transbordeur » signifie tout navire aménagé pour le seul transport de passagers de pont et de véhicules, qui est utilisé sur un petit parcours suivant un horaire entre deux points sur la voie d'eau la plus directe, et offre un service public généralement assuré par un pont ou un tunnel . . . (ferry vessel)

[30]            Clearly, that definition is not applicable in this case.

[31]            If it were to correspond to the usual meaning of the word "ferry", the Vacancier would only provide service from the Îles-de-la-Madeleine to the mainland. The Vacancier does much more than that.

[32]            When it approaches land, after crossing the water separating the Îles-de-la-Madeleine from the mainland, it does not stop there. It runs along the land on the Gaspé side to Matane, then stops at Québec before dropping anchor in Montréal. Although the advertising indicates that the arrivals and departures of the ship are [TRANSLATION] "regularly scheduled", a good part of its advertising promotes the cruises offered between Montréal and the Îles-de-la-Madeleine.

[33]            The trial judge, for his part, concluded that the Vacancier was not a ferry for the following reasons, at paragraph 25 and 26 of his reasons:

[25]    At most, the Vacancier's route from the Magdalen Islands to Matane could be said to constitute a ferry route. However, irrespective of the definition given to ferry, the fact is that the vessel Vacancier, when it navigates within the compulsory pilotage area, from Les Escoumins to Montréal, does not have a ferry route. It does not cross from one shore to another, but goes up the river from the stopover in Matane over a distance of 340 nautical miles. It follows the navigation channel taken by the other boats subject to compulsory pilotage. Its tonnage, its dimensions and the number of passengers it carries justify the presence aboard of qualified pilots.

[26]    The L.P.A. provides an exemption for vessels on the river whose route cuts across the navigation channel. There is no reason to think that a vessel whose route follows the channel throughout its length should be exempted from the conditions imposed on the other ships of similar tonnage and dimensions, irrespective of the designation given to the vessel or its classification by Lloyd's Register.

[34]            I have made the same determination based on the usual meaning given to the word "ferry", read together with the other language in paragraph 4(3)(b) of the Regulations.

IV.        Conclusion

[35]            I would dismiss the appeal with costs.

                                                                                "Alice Desjardins"            

J.A

I concur.

M. Nadon J.A.

I concur.

J.D. Denis Pelletier J.A.

Certified true translation

K. Harvey

                          FEDERAL COURT OF APPEAL

                              SOLICITORS OF RECORD

DOCKET:                  A-81-04

STYLE OF CAUSE: NAVIGATION MADELEINE INC. and ATTORNEY GENERAL OF CANADA and LAURENTIAN PILOTAGE AUTHORITY

PLACE OF HEARING: MONTRÉAL, QUEBEC

DATE OF HEARING:    DECEMBER 7, 2004

REASONS FOR JUDGMENT:                   DESJARDINS J.A.

CONCURRED IN BY: NADON AND PELLETIER.JJ.A.

DATE OF REASONS:    JANUARY 14, 2005

APPEARANCES:

Fernand Deveau Francis Gervais		FOR THE APPELLANT/PLAINTIFF
Anne-Marie Desgens		FOR THE RESPONDENT/DEFENDANT ATTORNEY GENERAL OF CANADA
Guy Major		FOR THE RESPONDENT/DEFENDANT LAURENTIAN PILOTAGE AUTHORITY

SOLICITORS OF RECORD:

Deveau, Lavoie, Bourgeois, Lalande & Associés Laval, Québec		FOR THE APPELLANT/PLAINTIFF
John H. Sims, Q.C. Attorney General of Canada Montréal, Quebec		FOR THE RESPONDENT/DEFENDANT ATTORNEY GENERAL OF CANADA
Guy Major Montréal, Quebec		FOR THE RESPONDENT/DEFENDANT LAURENTIAN PILOTAGE AUTHORITY