[1995] 3 F.C. 383
IMM-6504-93
Flota Cubana de Pesca (Cuban Fishing Fleet), Pickford & Black, Pesqueria LatinoAmericana, S.A., Pesqueria Atlantica S.A., Pesqueria Altamar S.A., Pesquera La Palma S.A., Transportes Oceanicos S.A. and Pezmares S.A. (Applicants)
v.
The Minister of Citizenship and Immigration (Respondent)
IMM-7407-93
Flota Cubana de Pesca (Cuban Fishing Fleet), Pickford & Black, Pesqueria LatinoAmericana, S.A., Pesqueria Atlantica S.A., Pesqueria Altamar S.A., Pesquera La Palma S.A., Transportes Oceanicos S.A. and Pezmares S.A. (Applicants)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Flota Cubana de Pesca (Cuban Fishing Fleet) v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, MacKay J.—Halifax, December 13, 1994; Ottawa, September 1, 1995.
Citizenship and Immigration — Exclusion and removal — Removal of visitors — Judicial review of immigration officers’ decisions requiring posting of security, concerning assessment of administration fees payable by owners, operators of Cuban fishing vessels from which crew members jumping ship, claiming Convention refugee status — Act, Regulations imposing fees on “transportation company” — Applicants transportation companies because transported crew on vessel to Canada — Definition not specifying primary purpose of vessel transportation of persons, goods — Parliament intending broad definition.
These were applications for judicial review of (1) a decision requiring payment of security money and (2) a decision concerning assessment of an administration fee. The applicants were Cuban companies which owned and operated fishing vessels which were required to put into Canadian ports to arrange for licences and observers. While in Canadian ports, some 20 crew members jumped ship and claimed Convention refugee status. Immigration authorities gave notice of a requirement to post security of $7,000 for each crew member involved, and later claimed a $5,000 assessment fee for administrative purposes for each of six named crew members. (The latter fee was apparently a charge against the $7,000 security payment.) Under Immigration Act, section 91.1, the Minister may make a preliminary assessment of an administrative fee against a transportation company in respect of a crew member who has ceased to be a visitor. Under section 92 the Deputy Minister may issue a direction to any transportation company requiring it to deposit such security as is deemed necessary to guarantee the company will pay the amounts for which it may become liable. “Transportation company” is defined as a person or group of persons transporting persons or goods by vehicle or otherwise.
The applicants contended that none of them was a “transportation company” because their purpose was not the transportation of persons or goods, but fishing or work related thereto. It was urged that “transportation company” was intended to apply only to persons or companies engaged in transportation of passengers or goods for hire. The respondent argued that it was enough if persons were carried by a vessel which stops in Canada.
Held, the applications should be dismissed.
The applicants fell within the definition of “transportation company” because they transported the crew on board their vessels. The definition of “transportation company” does not specify that the vessel be used primarily for transportation of goods or persons or that it be used for transportation for hire. There is nothing in the Act that would support the narrower definition of “transportation company” proposed by the applicants. Indeed, paragraph (b) of the definition applicable for purposes of certain sections of the Act includes persons operating a bridge or tunnel. The general purposes of the Act, the specific arrangements for crew members of foreign vessels and for the obligations of operators of vessels, as well as the practical aspects of administering the Act, all support the broader definition of the term “transportation company”. So does the broad scope of obligations of transportation companies set out in Part V of the Act, including section 86 which imposes liability on transportation companies for removal of their crew members. There is no reason consistent with the purposes of the Act to restrict that section to operators of vessels carrying people or goods for hire.
The following question should be certified for consideration by the Court of Appeal: “Where the owner or operator of a vehicle not used primarily for the purpose of transporting persons or goods, such as a vessel engaged in fishing operations, transports persons or goods into Canada aboard that vehicle, is the owner, operator, or any agent thereof a “transportation company” as defined under subsection 2(1) of the Immigration Act?”
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) “master”, “member of a crew” (as am. by S.C. 1992, c. 49, s. 1), “owner”, “transportation company” (as am. idem), “vehicle” (as am. idem), 26(1)(c.1) (as am. idem, s. 15), 27(2)(e) (as am. idem, s. 16), 83(1) (as am. idem, s. 73), 86 (as am. idem, s. 75), 91.1 (as enacted idem, s. 80), 92 (as am. idem, s. 81).
Immigration Regulations, 1978, SOR/78-172, ss. 53(1) (as am. by SOR/93-44, s. 23), 54(1) (as am. idem).
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Rosenbloom v. Lavut (1916), 33 D.L.R. 470 (Que. C.R.); Sault Ste. Marie, City of v. Algoma Steel Corporation Limited, [1961] S.C.R. 739.
APPLICATION for judicial review of immigration officers’ decisions requiring the posting of security, and concerning the assessment of administration fees payable by the owners and operators of Cuban fishing vessels from which several crew members had jumped ship in Canada and claimed Convention refugee status. Applications dismissed.
COUNSEL:
Roderick H. Rogers for applicants.
Gregory A. MacIntosh for respondent.
SOLICITORS:
Stewart McKelvey Stirling Scales, Halifax, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for orders rendered in English by
MacKay J.: These are two applications for judicial review, ordered to be heard together since they involve identical issues arising from similar factual circumstances. They concern decisions affecting the applicants, made by immigration officers responsible to the respondent Minister.
The applicants include Flota Cubana De Pesca, a Cuban organization responsible for operations of the Cuban Fishing Fleet affected by the decisions in question, Pickford & Black, the Canadian Agents for the Cuban organization and companies, and six separate Cuban companies which owned and operated fishing vessels or vessels associated with the Cuban Fishing Fleet operating in the Atlantic off Canada’s coast. Those vessels were engaged in fishing off Nova Scotia under terms of an international agreement between Canada and Cuba. In accord with that agreement Cuban vessels were required to be licensed for fishing in Canadian waters and to carry Canadian fishing inspectors while so engaged, and these obligations required that they put into east coast ports for licences or to pick up or drop off fishing inspectors. Others of the vessels were engaged in carrying fish from the Cuban fleet to a Canadian partner firm operating in Shelburne, Nova Scotia, and one of the vessels had put into port to land the body of a deceased crew member. While the vessels were in ports in Nova Scotia or New Brunswick, some 20 crew members of several vessels jumped ship and claimed refugee status.
Thereafter, immigration authorities gave notice of a requirement to post security in an amount of $7,000 for each crew member involved and later claimed an assessment fee for administrative purposes in the amount of $5,000 for each of six named crew members. The latter fee was apparently a charge against the $7,000 security payment demanded and paid in protest by the Canadian agent Pickford & Black.
The two applications for judicial review were initiated in respect of different decisions, the first relating to decisions requiring payment of the security money, and the second, concerning assessment of the administration fee. The applicants contend that the fees and payments are not required of them under the Immigration Act [R.S.C., 1985, c. I-2] and Regulations [Immigration Regulations, 1978, SOR/78-172], provisions of which set out requirements for such payments or fees by a “transportation company”. It is said that none of the applicants is a transportation company as defined by the Immigration Act.
When the matter came on for hearing counsel advised that it was agreed between the parties that the applications were withdrawn in so far as they related to payments in relation to five named crew members who had jumped ship, since the applicants conceded that the vessels on which they had served and which they left in port had been engaged in transporting fish or other goods. For the other crew members who had jumped ship, some 15 in all, the issues concerning payment of a security fee and the validity of the assessment fee were still in issue.
The legislative regime
Under the Immigration Act and Regulations a member of a crew of a vessel may be exempt from usual immigration procedures where the Master provides an accurate and complete list of the members of the crew in accord with subsection 53(1) [as am. by SOR/93-44, s. 23] of the Regulations. Once the crew list is received and endorsed by an immigration officer, all individuals named on the list are deemed to be visitors within the meaning of subsection 2(1) of the Act and they may enter Canada as visitors without further documentation. When a vessel departs from the port of entry the Master is required to provide a copy of the list of crew members as endorsed by the immigration officer upon entry, including all changes to the list which have occurred while the ship was in Canada. If a member of the crew deserts or fails to rejoin the vessel the Master is required to notify an immigration officer under subsection 54(1) [as am. idem] of the Regulations and he must provide a written report setting out details. Under paragraph 26(1)(c.1) [as am. by S.C. 1992, c. 49, s. 15] a member of the crew of a vehicle who enters Canada ceases to be a visitor when he ceases to be a member of the crew and he is then reportable under paragraph 27(2)(e) [as am. idem, s. 16] of the Act, as a person who entered Canada as a visitor and remains in Canada after ceasing to be a visitor.
Sections of the Act relevant in these applications include the following [ss. 86 (as am. idem, s. 75), 91.1(1) (as enacted idem, s. 80), 92(1) (as am. idem, s. 81)]:
86. Where a person enters Canada as or to become a member of a crew of a vehicle and ceases to be a visitor pursuant to subsection 26(1), the transportation company that operates that vehicle may be required by the Minister to convey that person, or cause that person to be conveyed, to the country from which that person came to Canada, or to such other country as the Minister may approve at the request of the company, and the company is liable to pay all removal costs in respect of that person.
…
91.1 (1) The Minister may, in accordance with the regulations, make a preliminary assessment of an administration fee against a transportation company in respect of any member of a class of persons prescribed for the purposes of this section
…
(b) who enters Canada as or to become a member of the crew of a vehicle operated by the company and who is the subject of a report pursuant to paragraph 27(2)(e) as a member of a crew who has ceased to be a visitor pursuant to paragraph 26(1)(c.1).
…
92. (1) The Deputy Minister may issue a direction to any transportation company requiring it to deposit with Her Majesty in right of Canada such sum of money, in Canadian currency, or such other prescribed security as the Deputy Minister deems necessary as a guarantee that the company will pay all amounts for which it may become liable under this Act after the direction is issued.
In addition, provisions of subsection 2(1) [as am. idem, s. 1], which includes definitions, are relevant in these applications, including the following definitions:
2. (1) …
“master” means the person in immediate charge or control of a vehicle;
…
“member of a crew” means, except as otherwise prescribed, a person, including a master, who is employed on a vehicle to perform duties during a voyage or trip related to the operation of the vehicle or the provision of services to passengers;
…
“owner”, in respect of a vehicle, includes the agent of the owner of the vehicle and any other person having any interest in respect of the vehicle;
…
“transportation company”
(a) means a person or group of persons, including any agent thereof and the government of Canada, a province or a municipality in Canada, transporting or providing for the transportation of persons or goods by vehicle or otherwise, and
(b) for the purposes of subsections 89(2) to (7), sections 92 and 93 and paragraph 114(1)(cc), includes any such person or group that operates a bridge or tunnel or is a designated airport authority within the meaning of the Airport Transfer (Miscellaneous Matters) Act;
“vehicle” means any conveyance that may be used for transportation by water, land or air.
Positions of the parties
For the applicants, it is submitted that none of the applicant companies is a “transportation company” within the meaning of the Immigration Act, aside from those operating vessels which, upon reflection, as advised at the hearing, applicants concede were used to transport goods.
The parties are agreed that the ships in question are “vehicles” as defined in the Act. The applicants submit, however, that they are fishing companies operating vessels engaged in fishing or work related to fishing and they are not transportation companies within the Act. Their purposes are not the transportation of persons or goods. The mere fact that some of their vessels arrived at Canadian ports with crews aboard did not bring them within the definition of a transportation company.
The applicants refer to legal dictionaries and definitions of the word “transportation”, as “the movement of goods or persons from one place to another by a carrier”. Further, “carrier” is defined in those dictionaries as “an individual or company engaged in transporting passengers or goods for hire”. It is urged that “transportation company” in the Immigration Act was intended to apply only to persons or companies engaged in transportation of passengers or goods for hire. The applicants refer to Rosenbloom v. Lavut (1916), 33 D.L.R. 470 (Que. C.R.), where the Court was concerned with interpreting the words “transportation business” in the context of workers’ compensation legislation which did not define the term. In that case, Bruneau J. concluded that only transportation undertaken by contractors or public carriers was included within transportation business, and others whose primary purpose was otherwise did not fall within that classification. In the Sault Ste. Marie, City of v. Algoma Steel Corporation Limited, [1961] S.C.R. 739, the Supreme Court of Canada dealt with the words “transportation system” in the context of taxing legislation which did not define the term. In light of the statute’s legislative history the Court found that the phrase had a limited meaning, referring to a system that provided service to the public, not one transporting goods as a part of the manufacturing business in which the taxpayer was principally engaged. Finally, it is urged that there is ambiguity in the words here used and that the assessment fees here levied are analogous to taxes and that in these circumstances, the assessments ought not to be imposed on the applicants.
Based on their argument that as operators of vessels not used to transport persons or goods for hire, or not used primarily for the purpose of transporting goods or persons, the applicants urge that the fees assessed in these cases be classified by the nature of the activity in which the respective crew members’ vessels were engaged. Thus, as noted, for five crew members whose vessels were engaged in transporting goods the applicants withdraw their applications, conceding the charges and fees in issue are applicable in those cases. For seven others who were crew members of vessels engaged exclusively in fishing, that visited Nova Scotia ports solely to arrange for licences and observers or to land the body of a dead crew member, it is urged they are engaged in fishing or activities ancillary to their fishing operations, which did not bring them within the definition of “transportation company” under the Act.
A third category included former crew members whose vessels were engaged in transfer of a portion of the catch by the fleet to the Canadian partner’s plant at Shelburne, N.S., a function which in the applicants’ view, did not mean that their work was that of a transportation company, for the work was an integral part of their fishing operations under the agreement with Canada.
For the respondent, it is urged that the meaning of “transportation company” under the Act is clear. It does not require that goods or persons be transported for hire, or indeed that the prime purpose of operating a vehicle or vessel be for the transportation of persons or goods. It is enough, as in this case, if persons, here crew members, are carried by a vessel which stops in Canada. The purpose of the Immigration Act is to control the entry to Canada of non-citizens and to provide for the administration and enforcement of the controls established. It is urged that the ability of immigration authorities to deal with a person who has been transported to Canada on board a vessel, whether a crew member or a passenger, cannot be dependent on the motivating reasons or purposes for the vessel’s operations. Whatever the purpose of the use of the vehicle or vessel may be, the only relevant fact that must be considered under the definition of transportation company is whether the person or group of persons “transports or provides for the transportation of persons or goods to Canada”. In the case at bar, it is pointed out that it required a good many months for the applicants to determine that some of the vessels in question were engaged in carrying goods, not merely in fishing and related activities. That sort of determination could not readily be made by immigration administrators who do not have information about the multitude of purposes that operators of various vehicles or vessels may have when they transport persons to Canada. Moreover, the Immigration Act makes specific provision for members of crews of vessels, in terms of their documentation and acceptance as visitors, but in turn, it imposes obligations on the Master of the vessel to report on crew changes before departure and for the operating companies to be responsible for costs involved in the event a crew member jumps ship, thus leaving the crew and relinquishing his visitor’s status under the Act.
Conclusion
In my opinion, the applicants fall within the definition of “transportation company” under the Immigration Act. While a number of their vessels are primarily engaged in fishing operations, or work incidental to those operations, they do transport the crew on board their vessels. They are required, as are the operators of any other vessel or vehicle transporting persons to Canada, to undertake certain acts in relation to their crews and immigration requirements. The Act and Regulations have specific provisions for dealing with arrangements for crew members on arrival to and departure from Canada, and for the obligations of companies operating the vessels to meet costs that may be incurred to remove persons transported to Canada, whether as crew members or otherwise, if they have no right to remain here under the Act. Thus the Act is broad enough to include operators of vehicles or vessels who arrive in Canada with stow-aways aboard who seek to leave the carrying ship in a Canadian port. The primary purpose of operating the vessel surely has little bearing on the obligations of operators and masters to avoid creating immigration problems for this country when they visit.
The definition does not specify that the vessel be used primarily for transportation of goods or persons or that it be used for transportation for hire. There is no basis in the Act for suggesting the narrower definition of transportation company proposed by the applicants. Indeed, paragraph (b) of the definition of “transportation company”, applicable for purposes of certain sections of the Act, including section 92 which is here the basis for security to be paid, includes persons or groups of persons operating a bridge or tunnel, or a designated airport authority. In my view, Parliament did not intend a narrow definition as the applicants contend. Rather, the general purposes of the Act, the specific arrangements for crew members of foreign vessels and for the obligations of operators of vessels, as well as the practical aspects of administering the Act, all support the broader definition of the term “transportation company” here urged by the respondent. So does the broad scope of obligations of transportation companies set out in Part V of the Act, now including more than a dozen sections, including section 86, imposing liability on transportation companies for removal of members of the crew of their vehicles, or vessels. There is no reason consistent with the purposes of the Act to restrict that section to operators of vessels carrying people or goods for hire.
For these reasons, I find that the applicant Cuban organizations are transportation companies as defined in the Act, as is Pickford & Black as an agent of those companies. They transported persons by vessel to Canada; the request for posting of security under the Act and the assessment of administration fees are valid in accordance with sections 91.1 and 92 of the statute.
The applicants’ applications for judicial review are thus dismissed by orders to be filed on the respective files, together with a copy of these reasons.
Following the hearing of this matter, I invited counsel to suggest any question that might be considered for certification pursuant to subsection 83(1) [as am. idem, s. 73] of the Act for consideration by the Court of Appeal. Counsel for the respondent requested the following question be certified.
Where the owner or operator of a vehicle engaged in fishing operations transports persons or goods into Canada aboard that vehicle, is the owner, operator, or any agent thereof a “transportation company” as defined under section 2(1) of the Immigration Act?
In my view, the question is of importance in somewhat more general introductory terms, i.e. “where the owner or operator of a vehicle not used primarily for the purpose of transporting persons or goods, such as a vessel engaged in fishing operations, transports persons or goods into Canada”. In these broader terms I agree to certification of the question and that is provided for in the orders issued with these reasons.