David Gerald Crabbe (Appellant)
v.
Honourable Donald C. Jamieson, Minister of
Transport (Respondent)
Court of Appeal, Thurlow J., Collier J. and
Choquette D.J.—Ottawa, May 29, 30 and 31;
June 1, 2 and 9, 1972.
Maritime law—Civil rights—Commissioner appointed to
investigate collision of ships—Canada Shipping Act, Part
VIII—Suspension of pilot's licence—Procedure at hearing—
Whether charge against ship's pilot to be made before
defence called for—Responsibility of Minister to formulate
charges.
A northbound freighter in a narrow channel off the Brit-
ish Columbia coast rounded a point of land to starboard and
immediately thereafter collided with a southbound ferry,
causing severe damage to the ferry and the loss of three
lives. A formal investigation before a Commissioner was
held under Part VIII of the Canada Shipping Act, and lasted
29 days. In accordance with Rule 7 of the Shipping Casual
ties Rules, notice of the investigation together with a copy
of the questions proposed by counsel for the Minister of
Transport to be answered by the court together with a
statement of the case in the prescribed form was served on
the freighter's pilot and the owners and officers of the two
ships. At the hearing witnesses called by counsel for the
Minister were examined and cross-examined during the first
22 days. Counsel for the freighter's pilot then declined to
call evidence on the ground that he was not required to do
so until charges warranting disciplinary action were made
against his client, and counsel for the Minister declined to
frame charges until all the evidence was in. The Commis
sioner rejected the contention of appellant's counsel, who
called no evidence, and the freighter's pilot was found
negligent and his licence suspended for 15 months. He
appealed.
Held, allowing the appeal, the suspension of appellant's
licence should be quashed.
Counsel for the freighter's pilot should have been given a
statement of the charge against his client, since it might
result in disciplinary action against him, before being called
upon to make his defence. The responsibility for formulat
ing charges if disciplinary action is to be taken rests with
the Minister.
The Chelston [1920] P. 400; Re Berquist [1925] 2
D.L.R. 696, applied; The Princess Victoria [1953] 2
Lloyd's Rep. 619, distinguished; Nelson Steam Naviga
tion Co. v. Board of Trade (1931) 40 Lloyd's Rep. 55;
The Seistan [1959] 2 Lloyd's Rep. 607, considered;
Koenig v. Minister of Transport [1971] F.C. 190,
referred to.
APPEAL from decision of investigating court
under Canada Shipping Act.
L. Langlois, Q.C. for appellant.
N. Mullins, Q.C. and A. C. Pennington for
respondent.
THURLOW J.—This is an appeal under section
576 of the Canada Shipping Act, R.S.C. 1952,
c. 29, [now R.S.C. 1970, c. S-9, s. 566] from the
decision of a Commissioner appointed under
Part VIII of the Act' to hold a formal investiga
tion into the circumstances surrounding a colli
sion which occurred in Active Pass in the Prov
ince of British Columbia on August 2, 1970,
between the M.V. Queen of Victoria and the
M.V. Sergey Yesenin. By the decision in ques
tion the Commissioner inter alia suspended the
licence of the appellant as a pilot for a period of
fifteen months and it is from this portion of the
decision that the present appeal has been
brought.
Active Pass is a narrow body of navigable
water some 2i miles long separating Galiano
and Mayne Islands. Its narrowest point is at its
southern end where between Helen Point on
Mayne Island and the Collinson Point Marker to
the northwestward on Galiano Island it is but
2.2 cables wide.
The collision occurred shortly after noon on a
clear day with nothing but a tide of some 1 to 2
knots flowing northeastwardly to affect naviga
tion in the pass. The Sergey Yesenin, a single
screw modern freighter of some 5,212.90 regis
tered tons and 523 feet in length was proceed
ing northwardly on her approach to the south
ern end of the pass and, having passed
Enterprise Reef Light, some three-quarters of a
mile to the southward of the entrance, at a
distance of one cable to starboard and having
thereafter put her engine on half speed, which
would ultimately reduce her speed through the
water from 16 to 12 knots, had commenced a
right-angled turn to starboard by applying first
10° and then 20° of her helm to round Helen
Point and enter the pass when the Queen of
Victoria appeared from behind the Point at a
distance of about half a mile proceeding west-
wardly in the southern portion of the pass. At
about the same time, the Sergey Yesenin was
seen by those on board the Queen of Victoria.
The collision occurred a minute later, near the
middle of the channel, when the port side of the
stem of the Sergey Yesenin struck the port side
of the Queen of Victoria between her bridge and
her funnel at an angle of some 40°-45° causing
severe damage to the Queen of Victoria and the
loss of the lives of three of her passengers. In
the interval between the sighting of the Queen
of Victoria and the collision, the engine of the
Sergey Yesenin had been put full astern and had
commenced to take some of the way off the
vessel.
The learned Commissioner found in answer
to Questions 7C and 7D that the appellant as
pilot had the conduct of the Sergey Yesenin at
the material time prior to and at the time of the
collision and in answer to Questions 11, 14 and
15 found as follows:
QUESTION 11. Did the collision occur in a narrow channel
within the meaning of Rule 25 of the Collision Regula
tions and if so were its provisions complied with by
the persons having the conduct of—
A. The "Queen of Victoria"; and
B. The "Sergey Yesenin"?
ANSWER: Yes.
A. No.
B. No.
QUESTION 14. What was the cause of the collision?
ANSWER: The cause of the collision was the failure of
those having the conduct of the "Queen of Victoria"
and of the "Sergey Yesenin"
FIRSTLY to observe the provisions of Rule 25(a) and
25(b) of the Collision Regulations, in that
(1) each vessel failed to keep sufficiently to her
starboard side of the channel,
(2) there was an absence of the proper standard of
alertness and caution in the conduct of each vessel
in the rounding of the bend in the channel formed
by Helen Point; and their failure
SECONDLY to take prompt decisive starboard action
on sighting.
QUESTION 15. Was the collision caused or contributed to
by the wrongful act or default by any person or
persons and if so what were those wrongful acts or
defaults and by whom were they committed.
ANSWER: Yes, as follows:
Captain D. G, Crabbe
(a) approached the bend of Helen Point on dangerous
courses;
(b) commenced rounding Helen Point at excessive
speed;
(c) failed to take immediate decisive starboard action
on sighting "Queen of Victoria".
Captain R. J. Pollock
(a) failed to maintain a proper look-out with respect to
the movements of the "Cape Russell" which he was
overtaking on his starboard side when knowledge of
the position of that vessel was essential to enable him
to navigate properly the remainder of the narrow
channel through which his vessel was proceeding;
(b) approached Helen Point on the wrong side of the
channel so that his vessel was on the wrong side when
sighted by the other.
In the review of the facts contained in the
annex to his report the learned Commissioner
found inter alia that the point where the colli
sion occurred was to the northward of the
centre of the channel, that the Sergey Yesenin
ought to have approached the entrance from
Enterprise Reef on a course further to the west
ward and that for the Sergey Yesenin any speed
above 6 to 8 knots when approaching the
entrance to the pass would have been excessive
in the circumstances even on a wider approach
than that made by her.
The authority of a court of investigation con
stituted under section 558 of the Canada Ship
ping Act to cancel or suspend the licence of a
pilot is contained in section 568 of the Act
which provides as follows:
568. (1) The certificate of a master, mate, or engineer, or
the licence of a pilot may be cancelled or suspended
(a) by a court holding a formal investigation into a ship
ping casualty under this Part, or by a naval court con
stituted under this Act, if the court finds that the loss or
abandonment of, or serious damage to, any ship, or loss
of life, has been caused by his wrongful act or default,
but the court shall not cancel or suspend a certificate
unless one at least of the assessors concurs in the finding
of the court;
(b) by a court holding an inquiry under Part II or under
this Part into the conduct of a master, mate, or engineer,
if it finds that he is incompetent, or has been guilty of any
gross act of misconduct, drunkenness, or tyranny, or that
in a case of collision he has failed to render such assist
ance or give such information as is required under Part
XII; or
(c) by any naval or other court where under the powers
given by this Part the holder of the certificate is supersed
ed or removed by that court.
(2) The provisions of this Part relating to the manner in
which such certificates shall be dealt with shall, so far as
they are applicable, extend to pilots' licences, which are
subject to cancellation or suspension in the same manner as
the certificate of a master, mate or engineer, is subject to
cancellation or suspension under this Part.
(3) The court may, instead of cancelling or suspending
any such licence, penalize any licensed pilot in any sum not
exceeding four hundred dollars and not less than fifty
dollars, and may make order for the payment of such
penalty by instalments or otherwise, as it deems expedient.
(4) Any penalty incurred under this section may be
recovered in the name of Her Majesty in a summary
manner with costs under the provisions of the Criminal
Code relating to summary convictions.
(5) Where any case before any such court as aforesaid
involves a question as to the cancelling or suspending 'of a
certificate, that court shall, at the conclusion of the case or
as soon afterwards as possible, state in open court the
decision to which they have come with respect to the
cancelling or suspending thereof.
(6) The court shall in all cases send a full report on the
case with the evidence to the Minister, and shall also, if
they determine to cancel or suspend any certificate, send
the certificate cancelled or suspended to the Minister with
their report.
(7) A certificate shall not be cancelled or suspended by a
court under this section, unless a copy of the report, or a
statement of the case on which the investigation or inquiry
has been ordered, has been furnished before the commence
ment of the investigation or inquiry to the holder of the
certificate.
(8) Each assessor who does not concur in and sign the
finding of the court shall state in writing his dissent there
from and the reasons for that dissent.
With respect to the procedure in such a court
of investigation section 565 provides that
formal investigations shall be held in some town
hall or county court house, or public building or
in some other suitable place to be determined
by the court, section 566(2) provides that the
proceedings of the court shall be assimilated as
far as possible to those of the ordinary courts of
justice, with the like publicity, and section 578
provides that the Governor-in-Council may
make rules for the carrying into effect of the
enactments relating to ... formal investigations
... "and, in particular, with respect to the
appointment and summoning of assessors, the
procedure, the parties, the persons allowed to
appear and the notice to the parties or the
persons affected."
The Shipping Casualties Rules made pursuant
to this authority follow very closely those pre
scribed under the corresponding provisions of
the Merchant Shipping Acts of the United King
dom and include the following:
7. (1) When an investigation has been ordered, the Min
ister may cause a notice, to be called a notice of investiga
tion, to be served on the owner, master, and officers or any
ship involved in the casualty that is to be investigated and
on any other person who in his opinion ought to be made
party to the proceedings.
(2) A notice of investigation shall contain a statement of
the case, together with a statement of the questions which,
on the information then available, are to be raised on the
hearing of the investigation, and shall be in the form of
Form No. 1 of the Schedule, with such variation as circum
stances may require.
(3) An officer of the Department thereunto authorized by
the Minister may, at any time before the hearing of an
investigation, by a subsequent notice amend, add to, or
delete any of the questions specified in the notice of
investigation.
8. The Minister and any person upon whom a notice of
investigation has been served shall be a party to the
proceedings.
10. The statement of the case contained in a notice of
investigation shall consist of the date, place and nature of
the accident to the vessel or vessels into which such investi
gation has been ordered.
16. (1) An investigation shall commence with the calling
of witnesses on behalf of the Department, who may be
examined, cross-examined and re-examined in such order as
the Court may direct.
(2) Questions asked and documents tendered as evidence
in the course of the examination of witnesses called on
behalf of the Department shall not be open to objection
merely on the ground that they do or may raise questions
which are not contained in, or which may vary from, the
statement of the case, or questions specified in the notice of
investigation or subsequent notices referred to in section 7.
17. (1) When the examination of the witnesses called on
behalf of the Department has been concluded, the repre
sentative of the Department shall state in open Court the
questions concerning the casualty, and the conduct of the
certificated officers or other persons connected therewith,
upon which the opinion of the Court is desired.
(2) In framing the questions for the opinion of the Court,
any officer of the Department thereunto authorized by the
Minister may make such modifications in, additions to, or
deletions from the questions in the notice of investigation or
subsequent notices referred to in section 7, as, having
regard to the evidence, he may deem necessary.
18. After the questions for the opinion of the Court have
been stated, the Court shall hear the parties to the investiga
tion, and shall determine the questions so stated; each party
to the investigation may address the Court and produce
witnesses, or recall any of the witnesses who have already
been examined for further examination, and generally
adduce evidence; the parties shall be heard and their wit-
nesses examined, cross-examined and re-examined in such
order as the Court shall direct; and there may be produced
and examined on behalf of the Department further wit
nesses, who may be cross-examined by the parties, and
re-examined for the Department.
19. When the whole of the evidence in relation to the
questions for the opinion of the Court has been presented
any of the parties may address the Court upon the evidence,
and the representative of the Department may address the
Court in reply upon the whole case.
In the present instance the proceedings of the
court of investigation extended over some 29
days. During the first 22 days most of the
persons who gave evidence, including the appel
lant, were called and examined by counsel for
the Minister and were cross-examined by coun
sel on behalf of the master and first officer of
the Queen of Victoria, and of her owner, who
was separately represented, and the owner and
master of the Sergey Yesenin, who were also
separately represented, as well as by counsel
for the appellant. Each of these parties had
been given notice of the holding of the investi
gation pursuant to Rule 7 of the Shipping Casu
alties Rules together with a copy of the ques
tions to be answered by the Court and a
statement of the case in the prescribed form.
None of them, however, had been informed of
any conduct on his part which it was proposed
to make the basis of a submission of a wrongful
act or default by him which caused the damage
or loss of life. What they had on that point, up
to the time of conclusion of the examination of
the witnesses called by counsel for the Minister
and the reading by him of the questions, con
sisted simply of what may have been implicit in
the statements made and questions put by coun
sel in the course of the examination of the
various witnesses and the answers given by
such witnesses. In this situation when the ques
tions had been read by counsel for the Minister
as required by Rule 17(1) and the stage of the
proceedings referred to in Rule 18 had been
reached, counsel for the appellant, on being
asked if he proposed to call evidence, submitted
that it would not be feasible to offer a defence
when no charges against his client had been
stated and that he was entitled to be informed
of the charges to be answered before being
required to put forward a defence. The
response of counsel for the Minister to this
submission was in effect that he could not at
that stage state the charges, that he needed to
have all the evidence in before he could do so
and that he would be entitled after the defence
evidence of all the parties had been completed
to frame charges based on what might appear
from such evidence. It seems apparent there
fore that even if the officers of or counsel for
the department had in mind at that stage certain
matters of the appellant's conduct which could
have been the subject of adverse findings, as I
do not doubt they did, counsel for the Minister
declined at that stage to state them because he
considered it possible that other or additional
subject-matter might appear from evidence that
might be adduced by some one or more of the
parties seeking to defend himself from imputa
tion of fault and because he wanted to retain his
freedom to add or substitute at the end charges
not then in contemplation.
The submission of counsel for the appellant
was, however, rejected by the learned Commis
sioner who ruled that it was "up to counsel to
assess the evidence heard so far and to decide
just in what hazard, if any, a particular client
seems to be". Thereafter no evidence was
offered on behalf of the appellant though coun
sel for him made a lengthy argument on the
evidence which had already been presented.
The submission made by counsel for the
appellant before the Commissioner was raised
again before us and was answered by counsel
for the Minister who took substantially the
same position he had taken before the
Commissioner.
In my opinion the submission of counsel for
the appellant that he was entitled to have a
statement of the "charge" or of the conduct
warranting the exercise by the Court of its
powers to discipline him before being called
upon to present his evidence or make his sub
mission to the Court was sound and with
respect I think it ought to have been upheld.
The position is, I think, made clear by a passage
from the 1929 edition of Shipping Enquiries
and Courts by A. R. G. McMillan, M.A., LL.B.,
at page 101:
FORM OF PROCEEDINGS.—
Proceedings in court require to be carefully distinguished
from proceedings in a criminal action in a court of justice.
They take the form of the investigation of the cause of a
casualty. From the nature of the case, however, it may be
necessary to combine the investigation, which is the primary
purpose of the proceedings, with an examination of a
"charge" against an individual. The charge may have conse
quences which, although not formally criminal, are highly
penal, and it is, therefore, necessary that the person
"charged" should have an opportunity of making a defence.
For these reasons, proceedings differ, on the one hand,
from a simple investigation of a question of fact, and, on the
other, from a criminal prosecution in a court of justice.
They retain, however, the character of an investigation
throughout, and evidence is led by the Board of Trade, not
in order to secure the conviction of any individual, but to
elucidate clearly the causes of the casualty whatever they
may be. They fall into two clearly defined stages. In the
first, a general investigation of the circumstances of the
casualty takes place. In the second, by means of questions
put to the court by the Board of Trade, its causes are more
precisely determined. (Emphasis added.)
Here, as I see it, if a possible consequence
for the appellant was that his licence might be
suspended it was necessary that there be com
bined with the investigation the examination of
a "charge" against him and it was necessary
that he be given an opportunity to make a
defence to that charge. It follows, in my opin
ion, that he was entitled to be notified of the
charge before being called upon to make his
defence.
This position is in my view supported by the
judgments in The Chelston [1920] P. 400, Re
Berquist [1925] 2 D.L.R. 696 and Nelson Steam
Navigation Company Ltd. v. Board of Trade
(The "Highland Hope") (1931) 40 Lloyd's Rep.
55. In The Chelston Sir Henry Duke, The Presi
dent of the Probate, Divorce and Admiralty
Division said at page 406:
I say nothing about foreign systems of law, but I think it
is true of our own system and of the law which prevails
throughout the British Empire, that, as an elementary prin
ciple of justice inherent in our law, there must be a hearing
and there must be a charge preferred before a penalty can
be inflicted. The provisions of the Merchant Shipping Act to
which reference has been made in this case—the particular
provisions which direct that this or that step shall be
taken—are merely modes of securing for the persons affect
ed the benefit of that principle of our jurisprudence. The
provisions of the rules framed by the Lord Chancellor are
provisions with the same object. But it seems to me that the
interests of shipmasters are more effectively protected
rather than less by being embodied in that provision in s. 36
of the Canadian Act of 1908, instead of being limited by
specific directions in rules. It makes it easier to administer
justice if one has specific directions in rules which show
how the interest of the suitor is protected, but if the matter
be at large, and one merely has to do justice, then it is
sufficient to say that the interest of the suitor, in this case
the appellant, shall not be prejudiced unless he has had an
opportunity of making a defence.
Later at page 407 he said:
In this case there was a searching inquiry conducted by
skilled persons with great care and they exposed by a
number of questions a great variety of matters on which it
would have been quite competent to representatives of the
Board of Trade, or any other complainant, to have submit
ted to the Court that the master was in default in respect of
one or more of those matters, but that step never was taken.
The investigation was completed by the evidence of the
master and the chief officer, and there the matter was left.
It may be that it would have been easier for the Canadian
Wreck Commissioner if he had had the guidance of a set of
rules like that contained in the Lord Chancellor's rules in
this country, but that is entirely a matter for the Canadian
administration. Those who administer the jurisdiction of
Canada are perfectly competent to say whether rules should
be laid down to secure definite objects, or whether those
objects should be left to be secured by general principles of
law. Rules are not laid down in this matter. The Court is left
at large as to direct what means shall be taken to secure that
the holder of the certificate has an opportunity of making a
defence. In the present case, by reason of the exceptional
circumstances, the necessity of formulating charges was
overlooked. No charges were ever formulated, and the first
notice the master had of the charges it was proposed to
make against him was in the findings of the Court by which
he was found guilty of certain of them.
It will be observed that the first sentence from
this quotation indicates that the Court was not
prepared to accept the position that the hearing
of the evidence presented was a sufficient
notice of what was to be urged as a basis for
disciplinary action without "charges" thereon
being formulated and without giving the person
affected notice of such charges and an oppor
tunity of making a defence thereto. It is also to
be observed that the Canadian law now includes
rules which are substantially the same as the
rules to which the learned judge refers. Section
36 of the Canada Shipping Act, 1908, which
provided that "The certificate shall not be can
celled or suspended unless the owner of the
certificate has had an opportunity of making a
defence" is no longer in the Act but in my
opinion it is beyond question that the principle
still applies under the rules and is to be kept in
mind in reading and construing them. It is to
these rules, however, as I see it, that one must
now look to see what the procedural rights of a
party are and how he is to be entitled to protect
himself in such a court. It is I think clear as well
that he is entitled to insist on his rights under
these rules whenever his substantive rights are
in jeopardy.
It is also my opinion that the responsibility
for formulating "charges", if disciplinary action
is to ensue, rests with the Minister and those
representing him and not with other parties to
the proceeding. It was urged that the role of
counsel representing the Minister at the investi
gation is not that of a prosecutor, that his duty
is simply to be fair to all parties and to seek to
bring out the facts for the court. That, however,
does not seem to me to differ much from the
traditional duty of a prosecuting officer to
approach his duties with the attitude that the
Crown neither wins nor loses and that his func
tion is simply to fairly present to the court the
evidence and arguments against an accused
person. Under section 496 of the Canada Ship
ping Act the Minister has the general superin
tendence of all matters relating inter alia to
shipping casualties. It is he who orders the
investigation and initiates the proceedings
before the court. When the investigation begins
he or the person representing his department
appears to have the conduct of the proceedings
since the investigation commences with the call
ing of witnesses on behalf of the department
and under the rules the questions to be
answered by the court are propounded by offi
cers of the department. Moreover, under the
rules no other person or party has the right to
propound or to amend a question for the court
and it is the representative of the department
who, under Rule 17, is required at the conclu
sion of the first stage of the proceedings, when
the examination of the witnesses called on
behalf of the department has been concluded, to
"state in open court the questions concerning
the casualty, and the conduct of the certificated
officers or other persons connected therewith,
upon which the opinion of the court is desired."
Nor is any other person authorized by the stat
ute or rules to formulate and present for the
consideration of the court a "charge" or accusa
tion of a wrongful act or default against any of
the certificated officers.
The only reported case which has come to my
attention which it may be difficult to harmonize
with these views is that of The Princess Victoria
[1953] 2 Lloyd's Rep. 619, where Lord Mac-
Dermott [Chief Justice of the Ulster High
Court] said at page 634:
Before proceeding with the case of these managers, a
special submission on their behalf must be noticed. This
was founded on sub-s. (11) of Sect. 466 of the Act of 1894
which reads:
Every formal investigation into a shipping casualty
shall be conducted in such manner that if a charge is
made against any person, that person shall have an oppor
tunity of making a defence.
This submission was based on the record of the proceed
ings in the Court below, including the transcript, which, it
was said, showed that no charge had been made against the
managers and that they had no proper opportunity of
making a defence.
In the opinion of this Court, the material available for its
consideration does not substantiate this grave allegation.
The questions originally submitted—that is, before the
formal investigation commenced—included a question
asking whether the loss of the Princess Victoria was caused
or contributed to by the wrongful act or default of, among
others, the managers. In view of this, and having regard to
the matters which were put to each of these managers as
witnesses in the course of a lengthy and searching examina
tion, this Court is satisfied that by the time the evidence
adduced by the Ministry had concluded neither of these
gentlemen could have failed to realize that his conduct as
manager of the ship and, in particular, as the official
charged with seeing that she was seaworthy, was in issue. It
might have been better if, at this stage, the questions had
been reframed so as to name the managers and they had
been informed by the Court as to their rights; but this Court
sees no reason to assume that either Captain Perry or
Captain Reed was in fact ignorant of his rights or was
denied an opportunity of making any defence he then
wanted to make.
It will be observed that the question pro
pounded for the court was similar in substance
to question 15 in the present case but there are
two points of distinction which appear to me to
make these remarks inapplicable in the present
case. First it does not appear from the report
that any objection was ever taken in the court
of investigation that the questions as put did not
inform the person concerned of the conduct on
his part to be considered as warranting a finding
against him. Secondly, the case was not one in
which a penalty was imposed. Nor does it
appear to be a situation in which it was open to
the court to impose one. Rather, so far as the
particular persons were concerned, it appears to
have been simply an investigation which result
ed in an imputation of a wrongful act or default
entailing no legal consequences but to which the
party, quite understandably, took exception.
It is without doubt highly undesirable that the
functioning of courts of investigation into ship
ping casualties should be hampered or impeded
by technicalities, and a fortiori is this true when
the matter put before the court is as voluminous
as it turned out to be in this instance, but it
seems to me to be equally undesirable that the
certificates of officers and licences of pilots
should be subject to cancellation or suspension
as a result of a procedure which does not guar
antee to them the elementary rights to be
informed of what it is that the officer or pilot is
to answer for and to be given a fair opportunity
to make his answer thereto. He cannot as I see
it be afforded the second until he has been
afforded the first.
Here as I see it the questions put to the court
are general in nature. They do not specify what
fault is suggested against anyone to whom they
refer or tell him what it is that he must answer
for and the department at the commencement
of the second stage of the proceeding declined
to be more specific. At that point the depart
ment through its officers or counsel had heard
the evidence given by all the witnesses that it
saw fit to call, including the appellant himself,
and the cross-examination of each of them by
several counsel and if it be considered that the
subject-matter which might require an answer
or defence by the appellant was already plain
from the evidence it should have been no
impossible burden for the Department through
its officers or counsel to state what that con
duct was, as Rule 17(1) appears to me to have
required to be done if the opinion of the Court
was desired on it. On the other hand if the
subject-matter requiring an answer was not
plain from the evidence a fortiori it was the
duty of the department through its officers or to
state what the conduct was upon which the
opinion of the court was desired so that the
appellant would be on notice of what it was that
he had to answer. I may add that I disagree
entirely with the submission that the Minister's
representative has the right to refrain from stat
ing the conduct on which the opinion of the
court is desired until after the defence evidence
has been produced, for it appears to me to be
plain that the rules contemplate an opportunity
for the officer or pilot to offer evidence and to
advance argument after the conduct on which
the opinion of the court is desired has been
stated.
It follows in my opinion that as against the
appellant the findings of wrongful act or default
on his part were not validly made and that the
suspension of his licence should not be sus
tained. This makes it unnecessary, for the dis
position of the appeal, to deal with the various
attacks made by counsel for the appellant on
the findings of fact made by the learned Com
missioner and it seems inappropriate as well
that I should do so in the circumstances since
the evidence on critical findings is not neces
sarily all that might have been brought forward
had the conduct of the appellant considered to
warrant his suspension been stated at the appro
priate time.
In my opinion the appeal should be allowed
and the suspension of the appellant's licence
should be quashed.
* * *
COLLIER J.—This appeal is from the suspen
sion of the appellant's licence as a pilot in the
B.C. Pilotage District for a period of 15 months.
The suspension was ordered by a court of
investigation appointed pursuant to section
558(1) of the Canada Shipping Act R.S.C.
1952, c. 29 to investigate a shipping casualty
which occurred on August 2, 1970, in Active
Pass, B.C., when the M.V. Sergey Yesenin and
the M.V. Queen of Victoria collided, with
resulting severe damage to the Queen of Vic-
toria and loss of three lives.
I shall hereafter refer to the Queen of Vic-
toria as "the ferry" and to the Sergey Yesenin
as "the freighter".
Active Pass is a narrow channel of water
which lies between Galiano Island on the north
and Mayne Island on the south. The freighter
was bound for Vancouver, B.C., and the appel
lant had boarded her off Victoria and acted
thereafter as pilot of the vessel. He was familiar
with the waters through which the freighter
passed.
The ferry was on a regularly scheduled run
from Tsawwassen to Swartz Bay but was run
ning approximately 8 minutes late.
As the freighter was approaching the south
ern entrance to the Pass and the ferry was
preparing to leave the Pass, those on the bridge
of each vessel sighted the other. Various steps
were taken to avoid a collision but without
success. The court of investigation found that
the point of collision was in the wrong waters
for the freighter.
I have very briefly summarized the facts. The
hearing by the court of investigation extended
over a period of 29 days. There was a great deal
of conflicting evidence and I sympathize with
the difficulties the Commissioner must have
had in attempting to analyze all that testimony.
The court of investigation answered 15 ques
tions submitted by the Minister of Transport
(the respondent here). In answer to question 14
as to the cause of the collision, the court of
investigation found that both vessels were at
fault. I set out the answer:
The cause of the collision was the failure of those having
the conduct of the "Queen of Victoria" and of the "Sergey
Yesenin"
FIRSTLY to observe the provisions of Rule 25(a) and
25(b) of the Collision Regulations, in that
(1) each vessel failed to keep sufficiently to her
starboard side of the channel,
(2) there was an absence of the proper standard of
alertness and caution in the conduct of each vessel
in the rounding of the bend in the channel formed
by Helen Point; and their failure
SECONDLY to take prompt decisive starboard action on
sighting.
The last question (Q. 15) was as follows:
Was the collision caused or contributed to by the wrongful
act or default by any person or persons and if so what were
those wrongful acts or defaults and by whom were they
committed.
The answer given by the court of investigation
in respect to the appellant is:
Yes, as follows:
Captain D. G. Crabbe
(a) approached the bend of Helen Point on dangerous
courses;
(b) commenced rounding Helen Point at excessive speed;
(c) failed to take immediate decisive starboard action on
sighting "Queen of Victoria".
The court of investigation went on in its
decision to state the wrongful acts or defaults
of the master of the ferry. The decision of the
court in respect to the licence of the appellant
was as follows:
The Court, having carefully inquired into the circum
stances of the shipping casualty under investigation, finds
for the reasons appearing in the Annex hereto, that the
wrongful acts or defaults of Captain R. J. Pollock, Master of
the "Queen of Victoria" and of Captain D. G. Crabbe, Pilot
of the "Sergey Yesenin", as more particularly set out in the
answer to question 15 of the questions stated for the
opinion of the Court, caused serious damage to "Queen of
Victoria", and loss of life, and were sufficiently culpable in
nature to justify action under Section 568 (1)(a) of the Act
although for the reasons also appearing in the Annex the
Court has decided to deal only with the licence of Captain
D. G. Crabbe.
The Court orders that the licence of Captain David
Gerald Crabbe be suspended for a period of fifteen (15)
months commencing this day.
The appellant has appealed pursuant to the
provisions of section 576(3) of the Canada
Shipping Act, R.S.C. 1952, c. 29.
Counsel for the appellant argued vigorously
that the findings of wrongful act or default were
wrong and should be rejected by this Court. I
shall term that the argument on the merits.
Another argument was made in this Court, as
it was in the court of investigation, which I shall
term the point of law. This involves considera
tion of various sections of Part VIII of the
Canada Shipping Act and the Shipping Casual
ties Rules made pursuant to section 578 of the
Act, R.S.C. 1952, c. 29.
I propose to deal with the point of law first.
In essence, the appellant contends that the
procedure set out by the Act and the Rules was
not followed in that, at a certain stage in the
proceedings, the particular acts or conduct
alleged to constitute the wrongful acts or
defaults should have been stated by the Depart
ment of Transport through its counsel and the
appellant then should have had an opportunity
to make his defence. The word "charges" was
used extensively in the court of investigation to
describe what ought to have been done, and
was used in this Court in argument, and I shall
use that term as well but in the general sense
and not the technical sense of criminal charges.
The court of investigation was investigating a
shipping casualty pursuant to section 560(a) of
the Act.
Section 566(2) provides:
566. (2) The proceedings of the court shall be assimilated
as far as possible to those of the ordinary courts of justice,
with the like publicity.
Section 568(1)(a) is as follows:
568. (1) The certificate of a master, mate, or engineer, or
the licence of a pilot may be cancelled or suspended
(a) by a court holding a formal investigation into a ship
ping casualty under this Part, or by a naval court con
stituted under this Act, if the court finds that the loss or
abandonment of, or serious damage to, any ship, or loss
of life, has been caused by his wrongful act or default,
but the court shall not cancel or suspend a certificate
unless one at least of the assessors concurs in the finding
of the court;
In this case, as I have already said, the court
of investigation found there had been wrongful
acts or defaults on the part of the appellant and
both assessors concurred in the finding.
Still dealing with the Canada Shipping Act,
another relevant subsection is 568(7):
(7) A certificate shall not be cancelled or suspended by a
court under this section, unless a copy of the report, or a
statement of the case on which the investigation or inquiry
has been ordered, has been furnished before the commence
ment of the investigation or inquiry to the holder of the
certificate.
There is no complaint here and no doubt that
this provision was complied with. The appellant
was furnished with "the report or statement of
the case" which included as well the 15 ques
tions earlier referred to'.
I come now to the Shipping Casualties Rules
which govern the conduct of the proceedings in
the court of investigation. Rule 7(1), which
requires a notice of investigation to be served
on the owner, master and officers of any ship
involved, was complied with. As I pointed out,
the notice contained the statement of the case
(as defined in Rule 10) along with the questions.
The appellant then became a party to the
proceedings as did the master of the freighter
and the master and first officer of the ferry, as
well as the owners of the two vessels.
Rule 16(1) provides:
16. (1) An investigation shall commence with the calling
of witnesses on behalf of the Department, who may be
examined, cross-examined and re-examined in such order as
the Court may direct.
This was done in this case. Counsel for the
Department called a large number of witnesses,
including Captain Khaustov, and the appellant,
and a number of the officers and other person
nel on board the freighter. The same thing
applied in respect to those on the ferry; counsel
for the Department called the master and other
officers and seamen. All these persons were
subjected to cross-examination by the various
parties to the proceeding.
I set out Rules 17 to 19 inclusive:
17. (1) When the examination of the witnesses called on
behalf of the Department has been concluded, the repre
sentative of the Department shall state in open Court the
questions concerning the casualty, and the conduct of the
certificated officers or other persons connected therewith,
upon which the opinion of the Court is desired.
(2) In framing the questions for the opinion of the Court,
any officer of the Department thereunto authorized by the
Minister may make such modifications in, additions to, or
deletions from the questions in the notice of investigation or
subsequent notices referred to in section 7, as, having
regard to the evidence, he may deem necessary.
18. After the questions for the opinion of the Court have
been stated, the Court shall hear the parties to the investiga
tion, and shall determine the questions so stated; each party
to the investigation may address the Court and produce
witnesses, or recall any of the witnesses who have already
been examined for further examination, and generally
adduce evidence; the parties shall be heard and their wit
nesses examined, cross-examined and re-examined in such
order as the Court shall direct; and there may be produced
and examined on behalf of the Department further wit
nesses, who may be cross-examined by the parties, and
re-examined for the Department.
19. When the whole of the evidence in relation to the
questions for the opinion of the Court has been presented
any of the parties may address the Court upon the evidence,
and the representative of the Department may address the
Court in reply upon the whole case.
It is in respect to these Rules that the point of
law, as I have termed it, arises.
At the conclusion of all the evidence called
on behalf of the Department, counsel for the
Department read the 15 questions which I have
referred to.
When asked if he proposed to call evidence,
counsel for the appellant took the position that
the Department, through its counsel, ought first
to state the particular things which it alleged
against the appellant, that is, the so-called
"charges". As I read the transcript of the pro
ceedings, there seemed to be, at the outset of
the argument, a difference of personal opinion
among counsel as to the correct procedure at
this stage of the hearing. Subsequently, counsel
for the master and first officer of the ferry took
a similar position, as did counsel for Captain
Khaustov.
Counsel for the respondent took the firm
position that all that was required at that stage
was to read the questions. It was his position, as
it was in this Court, that the relevant portion of
Rule 17(1) should be construed as if there was
no comma after the word "casualty"—"... the
Department shall state ... the questions con
cerning the casualty and the conduct of the
certificated officers ...". It was contended that
question 15, which is very generally worded,
sufficiently brought into question the conduct
of the officers upon which the opinion of the
court of investigation was requested.
Counsel for the respondent contended before
the Commissioner and here that the expression
"... shall determine the questions ..." in Rule
18, means that the questions shall be settled by
the court of investigation.
In Rule 16(2), Rule 17(2) and Form No. 1, it
is contemplated that the questions may be
modified, added to or altered at any time up to
the end of the first stage and counsel for the
respondent finds support there for his conten
tion that the word "determine" must be con
strued as "settle". The power to modify or
change the questions rests with the Department
of Transport and not with the court of investi
gation (see Rule 17(2)).
The respondent also contends that after the
stating of the questions as settled (I pointed out
that one question was revised somewhat at this
stage of the proceedings) the parties to the
investigation then have the right to adduce evi
dence. The respondent relied on Rule 19 to
support his contention that the so-called
"charges" could not be stated until all the evi
dence, including the evidence adduced by the
parties to the investigation, was before the
court, and took the position this would be done
in the Department's reply.
Counsel for the appellant, whose argument
was adopted by counsel for the master of the
freighter and counsel for the master and first
officer of the ferry, contended, here and below,
that the proper construction of Rules 17 to 19
inclusive is as follows:
1. At the end of the Department's "case",
its representative must not only read the
questions as finally worded by the Depart
ment, but must also state the "charges", if
any, against each certificated officer;
2. Rule 18 must be read as follows: After
stating the questions and charges, the court
shall then hear the other parties and shall
"answer" the questions. It is contended that
the remainder of Rule 18 merely sets out in
detail the manner in which the hearing of the
other parties is conducted.
3. In respect to Rule 19, its intention is
that after the evidence of all parties is heard,
then it is merely a matter of addressing the
court in argument.
I must confess I have some difficulty in
coming to what I conceive to be a proper con
struction of these Rules. They are, I think,
susceptible to the two interpretations set out
above and I can see some force in the respond
ent's contention that, after the evidence of the
other parties had been heard, a situation could
arise that the so-called "charges" might be inap
propriate, incomplete, or that additional
"charges" could conceivably be presented.
These considerations are hypothetical and are
not before us on this appeal.
Counsel for the respondent urged further at
the hearing that because of the extensive cross-
examination of the various parties and wit
nesses it must have been obvious to the appel
lant and other officers what particular wrongful
acts or defaults were being alleged against
them.
The Commissioner ruled in favour of the
respondent. The parties were then asked if they
wished to call evidence. Evidence was in fact
called on behalf of the owners of the ferry but I
point out there could be no question of cancel
lation or suspension of certificates or licences
in their case, it could only be a matter of
censure and, in any event, counsel for the
owners of the ferry had taken the position that
the procedure advocated by counsel for the
respondent was the correct one.
The appellant called no evidence, primarily,
as I understand it, on the grounds that there had
been a denial of natural justice in that no
"charges" had been presented or stated. The
two masters and the first officer of the ferry did
not adduce evidence on their own behalf. At the
conclusion of the evidence called on behalf of
the ferry owners, all counsel then made submis
sions to the court of investigation. Counsel for
the Department then made a reply in which,
inter alia, he made specific allegations or
"charges" against the appellant and some of the
other parties, including the master of the ferry.
Counsel for the appellant, although given the
right to, did not make any submissions in reply
to the specific allegations on the basis that he
would prejudice the position he had taken as to
what was in effect, according to him, a denial of
the principles of natural justice.
In an appendix to his report to the Minister of
Transport, the Commissioner set out his rea
sons for the ruling he had given. He said at p.
55 of his report in respect to the Shipping
Casualties Rules to which I referred:
It is clear at once that there is no statutory requirement
that allegations or charges of any nature be specified at any
time. Any disposition by the Court of a certificate or licence
is incidental to the main purpose of the investigation which
is to ascertain the causes of the casualty, not to adjudicate
upon charges against anyone.
With deference, I do not think it is at all clear
that there is no statutory requirement that
"charges" be specified. I think Rule 17(1) is
open to the interpretation contended for by the
appellant, that is, that the Department shall
state questions concerning the casualty and
questions concerning the conduct of the offi
cers. Again with deference, I cannot agree that
the disposition of a certificate or licence is
merely incidental to the main purpose of the
investigation, as in my view the purpose of the
investigation is not only to ascertain the causes
of the casualty but to decide as well whether
the conduct of any of the officers is sufficiently
culpable to warrant some disposition being
made of their certificates or licences. To my
mind, there is in fact an adjudication made in
respect of their conduct in connection with the
shipping casualty which may or may not result
in suspension or cancellation of a certificate or
licence. I find support for this view in the words
of Jackett C.J. in Koenig v. Minister of Trans
port [1971] F.C. 190 at p. 206:
... When the Investigating Court is acting under s. 568 with
reference to a certificate or a pilot's licence, it is not
answering a "question", it is making an order with operative
effect and it must make findings of fact that are required by
the relevant law. This is quite a different process although,
in the circumstances, the two processes overlap.
The Commissioner, at pp. 56-57 of his report,
further expressed his opinion:
I have considered whether, in spite of the adherence to
the rules and practice as I understand it there has in fact
been a denial of natural justice or a breach of the Canadian
Bill of Rights, as has been submitted. The suspension or
cancellation of a certificate or licence is penal in nature and
every officer or pilot with respect to whom such action is
considered by a Court of Investigation must be aware that
his conduct is under investigation and have full right to be
heard and defend himself. The closest thing to a "charge"
contemplated in the proceedings covering these investiga
tions is the giving of notice under Rule 7 (1). The moment
that Captain Khaustov, Captain Crabbe, Captain Pollock
and Mr. Kironn received such notice, containing as it did,
the statement of the case and a statement of the questions
then appearing appropriate, these officers and pilot were
put on notice that their conduct was in question. There
could be no other reason for making any of them a party.
The issues in this Investigation became clear at an early
stage. The owner, Master and First Officer of the "Queen
of Victoria" on the one hand and the owner, Master and
Pilot of "Sergey Yesenin" on the other conducted their
cases from the beginning in a manner intended to throw the
entire blame for the collision on the other vessel, and to
clear themselves individually of any error or wrong doing.
Allegations of neglect, carelessness, bad judgment, bad sea
manship, misconduct and default were exchanged in a varie
ty of ways and were particularly revealed in cross-examina
tion of witnesses.
There could have been no doubt in the mind of any of the
individual parties at the conclusion of the first stage of
these proceedings as to the allegations of wrongful act or
default against him inherent in the proceedings to that point.
It was then the right of each such party to assess his
position and to decide how to conduct his case during the
second stage. The record of the proceedings will disclose
that not only has every individual party had the full right of
defence but has exercised it throughout in most vigorous,
thorough and competent manner against every "charge" or
"allegation" of misconduct that could be inferred from the
evidence and conceivably form the basis for a suspension or
cancellation of a certificate or licence, or in the case of
Captain Khaustov, for censure. I have concluded, with no
doubts in the matter, that there has been no denial of
natural justice and no deprivation "of the right to a fair
hearing in accordance with the principles of fundamental
justice" and hence no impairment of the jurisdiction vested
in the Court to deal with the certificates and licence
involved or to express censure. I am satisfied that any
suspension of a certificate or licence has been by due
process of law.
I appreciate the problems the Commissioner
had in this long, complicated and hotly contest
ed hearing and I have no doubt every possible
fault on any party was canvassed in the ques
tioning of witnesses. With deference, I cannot
agree that the fact the parties may have had a
good idea of the allegations of wrongful acts or
defaults that might be alleged against them is
sufficient. In my view, those wrongful acts or
defaults ought to have been specifically alleged
or particularized at the end of the first stage of
the proceedings, so that the parties could con
sider what, if any, evidence they might wish to
call to rebut those allegations. I am of the
opinion I am supported in this view by a
number of cases. (The Chelston [1920] P. 400;
Re Berquist [1925] 2 D.L.R. 696; Nelson Steam
Navigation Co. v. Board of Trade (The "High-
land Hope.") (1931) 40 Lloyd's Rep. 55; The
"Seistan" [1959] 2 Lloyd's Rep. 607.)
Before dealing with these cases, I shall refer
to the history of certain sections of the Canada
Shipping Act.
In R.S.C. 1906, c. 113, section 788 read as
follows:
788. Whenever a formal investigation is likely to involve
a question as to cancelling or suspending the certificate of
competency or service of any master, mate, pilot, or engi
neer, he shall be furnished with a copy of the report or
statement of the case upon which the investigation has been
ordered.
This section was carried into R.S.C. 1927, c.
186 as section 769. Its counterpart in R.S.C.
1952, c. 29 appears to be section 568(7)
although as can be seen the present wording is
somewhat different.
Section 795 of R.S.C. 1906, c. 113, read as
follows:
795. Every formal investigation shall be conducted in
such manner that, if a charge is made against any person,
such person shall have an opportunity of making a defence.
This section was carried into R.S.C. 1927, c.
186, as section 776 but was not carried forward
into the major revision of the Canada Shipping
Act of 1934, nor does it appear in R.S.C. 1952,
c. 29. So far as I can trace, this section, in
identical words, has been in the Merchant Ship
ping Acts in the United Kingdom for many
years.
Section 801(3) of R.S.C. 1906, c. 113, as
amended by S.C. 1908, c. 65, section 36, read
as follows:
801. (3) A certificate shall not be cancelled or suspended
under this section unless the holder of the certificate has
had an opportunity of making a defence.
Section 801 at that time was very similar to the
present section 568 in that it dealt with the
cancellation or suspension of certificates or
licences where there were wrongful acts or
defaults. Section 801(3) was carried forward
into R.S.C. 1927, c. 186, as section 782(3); it
was not included in the revision of 1934 nor
does it appear in R.S.C. 1952, c. 29. It is in the
corresponding U.K. statute as section 466(11).
I should state at this point that the absence of
a section similar to the former section 801(3)
does not change my opinion that an officer
whose certificate or licence may be in jeopardy
is entitled to know what specific allegations are
made against him in order that he can make a
proper defence. I think that principle is
ingrained in our system of law whether or not it
is spelled out in a statute.
I now refer to the cases I have earlier men
tioned. In The Chelston, the vessel stranded on
St. Paul's Island, Nova Scotia. She was a Brit-
ish vessel and her master held a certificate
issued by the Board of Trade. A court of inves
tigation was convened in Montreal under the
relevant provisions of the Canada Shipping
Act. The court, following a hearing, found the
master guilty of certain wrongful acts or
defaults and suspended his certificate for 3
months. The master appealed to the Admiralty
Division of the High Court in England. It
appears from the report that the Commissioner
in Canada did not have the advantage of rules
similar to the Shipping Casualties Rules but, as
I have pointed out, the Canada Shipping Act at
that time contained section 801(3) which I have
already quoted. Sir Henry Duke said at pp.
406-7:
I say nothing about foreign systems of law, but I think it
is true of our own system and of the law which prevails
throughout the British Empire, that, as an elementary prin
ciple of justice inherent in our law, there must be a hearing
and there must be a charge preferred before a penalty can
be inflicted. The provisions of the Merchant Shipping Act to
which reference has been made in this case—the particular
provisions which direct that this or that step shall be
taken—are merely modes of securing for the persons affect
ed the benefit of that principle of our jurisprudence. The
provisions of the rules framed by the Lord Chancellor are
provisions with the same object. But it seems to me that the
interests of shipmasters are more effectively protected
rather than less by being embodied in that provision in s. 36
of the Canadian Act of 1908, instead of being limited by
specific directions in rules. It makes it easier to administer
justice if one has specific directions in rules which show
how the interest of the suitor is protected, but if the matter
be at large, and one merely has to do justice, then it is
sufficient to say that the interest of the suitor, in this case
the appellant, shall not be prejudiced unless he has had an
opportunity of making a defence.
Being satisfied that the effect of the Canadian provisions
is as I have stated, what the Court has to ascertain is
whether the appellant had the opportunity of making his
defence. In my judgment, he had not. I think that, owing to
the dispatch which was used in consequence of the excep
tional circumstances—the sitting of the Court being fixed at
an unusual hour—those who conducted these proceedings
lost sight of the requirements of s. 36 of the Canadian Act
of 1908, and lost sight of the fact that a Court cannot visit a
man with a penalty until it has first informed him what is
the matter in respect of which he is brought to judgment.
In this case there was a searching inquiry conducted by
skilled persons with great care and they exposed by a
number of questions a great variety of matters on which it
would have been quite competent to representatives of the
Board of Trade, or any other complainant, to have submit
ted to the Court that the master was in default in respect of
one or more of those matters, but that step never was taken.
The investigation was completed by the evidence of the
master and the chief officer, and there the matter was left.
It may be that it would have been easier for the Canadian
Wreck Commissioner if he had had the guidance of a set of
rules like that contained in the Lord Chancellor's rules in
this country, but that is entirely a matter for the Canadian
administration. Those who administer the jurisdiction of
Canada are perfectly competent to say whether rules should
be laid down to secure definite objects, or whether those
objects should be left to be secured by general principles of
law. Rules are not laid down in this matter. The Court is left
at large as to direct what means shall be taken to secure that
the holder of the certificate has an opportunity of making a
defence. In the present case, by reason of the exceptional
circumstances, the necessity of formulating charges was
overlooked. No charges were ever formulated, and the first
notice the master had of the charges it was proposed to
make against him was in the findings of the Court by which
he was found guilty of certain of them.
To me, the concept of a "charge" in the sense
of knowing almost exactly the details of the
conduct complained of, and the opportunity of
meeting that charge, has, by the Chelston case,
early been infused into the investigative proce
dures under the Canada Shipping Acts.
The Berquist case is a decision of Macdonald
J. of the Supreme Court of British Columbia
and, in my view, gives strong support to my
preceding comment. Berquist was the master
and owner of a vessel which was lost by fire. A
report of the casualty along with a number of
questions for the opinion of the Court was
served by the Department of Marine and Fish
eries on him pursuant to provisions of the
Canada Shipping Act similar to the provisions
involved in this case. One of the questions read
as follows: "Was the loss of the (vessel) caused
by the wrongful act or default of the Master?"
(I interpolate here that section 801 of the
Canada Shipping Act of R.S.C. 1906, c. 113,
was substantially similar to the present section
568 in respect to the cancellation or suspension
of certificates where wrongful acts or defaults
had been found by the court. Subsection (3) of
former section 801, as previously quoted, was
of course present, but I attach, as I think Mac-
donald J. did, no great significance to that.) The
Department adduced evidence, including the
calling of the master as a witness. At the con
clusion of the evidence for the Department, its
representative submitted the questions. Mac-
donald J. said at p. 701:
. He (the representative of the Department) did not
specify any acts of misconduct upon which the opinion of
the Court was desired.
The court then answered the questions put to it
including the one regarding wrongful act or
default on the part of Berquist, and specified
certain acts and omissions in its answer. The
master's certificate was suspended for 6
months. At that time there was no appeal to a
higher court as now, but there was a right to
apply to the Minister for a rehearing. This was
not done, but certiorari proceedings were
launched and the whole question, as I read the
case, was concerned with the application of
principles of natural justice, i.e., the right to
notice of a "charge" and the opportunity then
to answer the specific charges. Macdonald J., in
referring to the procedure adopted by the court
of investigation said at p. 704:
... A certain procedure was prescribed by the rules under
the Shipping Act but it was not followed.
The learned judge does not set out the Rules
and I have been unable to find a copy of the
Rules then in effect, but from the brief descrip
tion the learned judge gives of them, I feel
satisfied they were substantially similar to the
Shipping Casualties Rules of the United King
dom promulgated in 1907 which, again, are
substantially the same as, and in many instances
identical to, our present Rules. Macdonald J.
quashed the decision of the court of investiga
tion for failure to allege "charges" and I find his
remarks at pp. 705-706 quite apt to this appeal:
Berquist was not enabled on account of the nature and
form of the charges to present his defence. It is self-evident
that a person, in order to defend himself against a charge,
must know the nature of the charge. In such charge there
should not, in the words of Lord Alverstone in Smith v.
Moody, [1903] 1 K.B. 56, 72 L.J.K.B., at p. 46, be "any
departure from the rules requiring fair information and
reasonable particularity as to what is charged against a
man". It was strongly urged that these rules were not
followed and that the "questions" which formed the
charges, upon which Berquist was tried were not positive
and certain so that he might see by the information (the
questions) how to direct his evidence. Vide Paley on Sum
mary Convictions, Lib. Ed. p. 96.
Further, that aside from the statutory protection afforded
to Berquist, that the rule of natural justice referred to in
Paley at pp. 95-6, "that the accused should have an oppor
tunity of being heard before he is condemned" had not been
observed. This rule is indispensably required in all proceed
ings of a summary nature by Justices of the Peace— Vide
Reg. v. Dyer (1704), 1 Salk. 181, 91 E.R. 165, 6 Mod. 41, 87
E.R. 803,—"It is an invariable rule of law"—Lord Kenyon
in Rex v. Benn (1795), 6 Term. Rep. 198, 101 E.R. 508. It
would apply upon the trial of Berquist. In this connection,
Parke, B., in delivering judgment in Bonaker v. Evans
(1850), 16 Q.B. 162, at p. 171, 117 E.R. 840, said:—
no proposition can be more clearly established than that a
man cannot incur the loss of liberty or property for an
offence by a judicial proceeding until he has had a fair
opportunity of answering the charge against him, unless,
indeed, the Legislature has expressly or impliedly given
an authority to act without that necessary preliminary.
This rule has been applied to cases other than those
which are in the strictest sense, judicial, per Erle, C.J., in
Cooper v. Wandsworth Board of Works (1863), 14 C.B.
(N.S.) 180, 143 E.R. 414. Here the Shipping Act expressly
requires that notice should be given and a defence afforded
to a party where the question of his certificate of competen
cy is involved. An example of the necessity that the convic
tion for an offence should be founded upon an information
alleging specifically such offence, is shown by the case of
Reg. v. Brickhall (1864), 33 L.J.M.C. 156. There the party
accused was summoned for assaulting a police constable in
the execution of his duty and was convicted of the lesser
offence of common assault. He had not been charged with
that offence, and Crompton, J., considered the conviction to
have been made without jurisdiction and void. It was held
that although the right to certiorari had been taken away by
statute, this did not apply, as there had been an excess of
jurisdiction. Reference was made, with approval, to Martin
v. Pridgeon (1859), 1 E. & E. 778, 120 E.R. 1102, where the
accused person was convicted of being drunk under one
statute, though he had been summoned for being drunk and
riotous under another statute, and the conviction was on
that account held bad.
Berquist was not in terms found guilty of a "wrongful
act" causing a loss of the SS. Trebla but of the "default"
mentioned bringing about the disaster. From the form of the
question served upon him, he could not, especially in view
of the more serious charge, have known that he was being
tried on the charges, that he deviated from his intended
course, then anchored, and left his vessel inadequately
manned. He might have suspected from his examination
that those matters were in the mind of the Court but he was
not "charged" with them as being acts either wrongful or of
default. Nor when Morris on behalf of the department
submitted the questions for the opinion of the Court, in
accordance with the rules, were such acts of omission and
commission presented to the Court for its consideration.
Berquist was thus not given an opportunity of meeting any
such allegations of default nor presenting a defence. He
should have been afforded a full and complete defence to
charges of which the precise nature had been stated. He
was deprived of this right and as far as the findings of
default are concerned, he had not notice that he was on trial
and was condemned unheard. The "questions" constituting
the "charges" to be investigated were not sufficiently spe
cific to warrant the findings upon which decision was based.
This is a defect apparent upon the face of the "record",
and, in the way the trial was held, not remediable, even if
resort were had to the evidence, to show what occurred in
the investigation. This latter course might be admissible, as
not at variance with the Nat Bell case, supra, if the purpose
was not to determine the nature and extent of the evidence,
but, for example, to see if the indefinite and general charges
had been extended or specified before the Court and pre
sented to Berquist for his defence and thus might support
its decision. As I have mentioned, this was not done. In a
case in which the unfairness of the trial can hardly be said
to be involved Madden, C.J., in Reg. v. The Court of Marine
Inquiry (1897), 23 Victoria Rep. 179, at p. 180, expressed
himself as follows:
Although the point here is a technical one, the salutary
rule that in a charge affecting a man's life, liberty or
property, precision should be insisted on is to be enforced
and that he should be informed with particular exactness
the precise nature of the charge against him.
In the Nelson case, a decision of the Admiral
ty Division (Divisional Court) the facts were
considerably different from the facts in this
appeal, but in my opinion, some expressions of
principle in that case apply in this case. There, a
vessel went aground and sank. The wreck com
mission held a formal investigation under the
provisions of the Merchant Shipping Act and
the Rules and found the master to blame in
respect to a number of matters and suspended
his certificate. One finding of the court was to
the effect that the owners of the vessel were to
blame as well, because they had employed an
elderly master. It appears that somewhere
during the course of the hearing a casual ques
tion was directed to the master about his age,
meant more as a compliment than a criticism.
The owners appealed. The master did not. The
President (Lord Merrivale), in allowing the
appeal, states the point involved and his view at
p. 58:
But then one has to consider here the further complaint
Mr. Dickinson made upon the part of the owners—that they
have been condemned in this matter without being either
charged or heard, and that one of the preliminaries to
condemnation in our English system of administration of
justice is that there shall be a charge and that the accused
person shall have the opportunity of answering it. The
Merchant Shipping Act, 1894, provides the machinery for
these inquiries and it contains this provision in Sect. 466:—
(11) Every formal investigation into a shipping casual
ty shall be conducted in such manner that if a charge is
made against any person, that person shall have an oppor
tunity of making a defence.
As I have said, there was not a charge—there was a
conversational inquiry or suggestion—and there was not an
opportunity of defence, because the owners were not aware
there was supposed to be a charge. That being so, outside of
the broad ground to which I have referred, the appeal must
be allowed here because the owners have been condemned
unaccused and unheard.
I do not regard the reference to section 466
of the Merchant Shipping Act as a sound
ground for distinguishing the Nelson case. As I
have stated earlier, perhaps in other words, the
general principle of the formulation of a specif
ic allegation or accusation and then an oppor
tunity to meet it is, to me, an overriding
consideration.
Langton J., in the same case, at pp. 58, 59
said this:
The findings of the magistrate are not in question save
upon the one matter. This one matter appears to have been
introduced at a very late stage by the magistrate, and the
charge—if one can say that any charge was really made at
all—was a charge proceeding from his own mind; it was not
embodied in any of the questions addressed to the Court by
the Board of Trade.
There is a well-known procedure in these inquiries by
which, after the evidence has been heard, supplementary
questions or modifications of the questions can be intro
duced, and I have no doubt whatever that if a Court, on an
occasion of that kind, felt that some supplementary ques
tion or some modification of a question should be intro
duced, the Board of Trade would immediately comply with
that suggestion. They would not be slow to introduce a
supplementary question which dealt with a matter of impor
tance in the casualty, or to modify any question if it seemed
to them in the public interest that that were desirable.
In this case nothing of the kind was done. The most that
can be said to have happened was that Counsel for the
owners was allowed an opportunity to make a few remarks
upon the general topic; he had hardly an opportunity at that
time of dealing with this specific case, or of knowing
exactly what was the matter proceeding in the mind of the
Court.
He deals with it on the spur of the moment as best he
might, but I entirely agree with what my Lord has said that
that is not the formulation of a charge—that is not giving
the party accused under the charge a proper opportunity of
preparing and presenting a defence.
The Seistan: At the formal investigation into
the sinking of a vessel, following a fire and
explosion, the chief engineer for reasons of ill
health was not called at the hearing. The court
of investigation findings showed that the loss of
the vessel was not due to any wrongful act or
default by any person, but one of the assessors
added a rider in which he characterized certain
conduct of the chief engineer as reprehensible.
A rehearing was ordered in respect to the con
duct of the chief engineer. The Divisional Court
(Admiralty Division) on the rehearing found as
a fact there was no misconduct on the part of
the chief engineer, but also held the criticism
made by the assessor was not justified. The
President, Lord Merriman, said at p. 609:
In the course of the hearing of the investigation, no
charge was made against the chief engineer, and no notice
was given to him of the possibility of any such charge. He
was not made a party, nor was there any reason why he
should have applied to be made a party.
and at p. 610:
Having regard to the absence of any charge against the
chief engineer, and the consequent lack of any opportunity
to meet any such charge, this expression of censure by one
Assessor in the rider was wholly irregular whatever view
may be taken of the merits. It is obvious, however, that the
real object of this rehearing is to inquire into the merits of
the censure.
These cases, which I am afraid I have dis
cussed at considerable length, convince me that
in this particular hearing, the respondent ought
to have been required to make specific allega
tions of what I will term misconduct which
might lead to quasi-penal consequences, such as
the suspension of a licence, and that those
allegations ought to have been made at the end
of the so-called first stage. The appellant, nor
his counsel, could not anticipate what findings
might ultimately be made against him. He had,
in my view, the right to know long before the
final arguments, what the case was he might
have to meet 2 .
There are two other cases I should refer to.
In The "Princess Victoria" [1953] 2 Lloyd's
Rep. 619, a car ferry sank during heavy weather
in the Irish Sea. The court of inquiry found that
the loss was due to unseaworthiness and that
there were wrongful defaults on the part of the
owners and managers. The decision was
appealed to `the Ulster High Court. It was con
tended on behalf of the managers that no charge
had been made against them in the court below
and that they had no proper opportunity of
making a defence. Lord MacDermott rejected
that contention. He pointed out that the ques
tions submitted before the formal investigation
commenced included a question asking whether
the loss of the Princess Victoria was caused or
contributed to by the wrongful act or default of,
among others, the managers. He went on to say
this at p. 635:
... In view of this, and having regard to the matters which
were put to each of these managers as witnesses in the
course of a lengthy and searching examination, this. Court is
satisfied that by the time the evidence adduced by the
Ministry had concluded neither of these gentlemen could
have failed to realize that his conduct as manager of the
ship and, in particular, as the official charged with seeing
that she was seaworthy, was in issue. It might have been
better if, at this stage, the questions had been reframed so
as to name the managers and they had been informed by the
Court as to their rights; but this Court sees no reason to
assume that either Captain Perry or Captain Reed was in
fact ignorant of his rights or was denied an opportunity of
making any defence he then wanted to make.
I think that case is distinguishable. There, no
objection was taken by the managers in the
court below and the only issue, so far as I can
see from the case, was the seaworthiness of the
vessel for which, of course, the managers would
be responsible. In the present case there were
many issues and I do not think it possible to say
that the appellant must necessarily have real
ized all the matters which might be alleged
against him.
In any event, I prefer to adopt the reservation
expressed by Jackett C.J. of this Court in the
Koenig case [1971] F.C. 190 at p. 207:
I should not leave this aspect of the matter without
adding that I do not wish to be taken as implying that an
officer or pilot is not entitled to the protection of the
ordinary principle governing a fair hearing. In particular, I
have no doubt that he is entitled to notice of what is alleged
against him and to an opportunity to make his answer
thereto. In this case, however, a perusal of the transcript of
the hearing makes it clear that the appellant was ably
represented and there would appear to be no doubt that he
knew what was to be answered and had a full opportunity to
answer it.
As I understand the Koenig case there was only
one issue: whether the appellant there had made
an improper turn to port.
In support of the procedure adopted by the
court of investigation, reliance was placed on
The Carlisle [1906] P. 301. In my view that case
is authority only for the proposition that coun
sel for the Board of Trade (here the Department
of Transport), in his closing submissions, should
indicate to the Court his (that is, the Depart
ment's) view as to whether or not the Court
should deal with the certificates of any of the
parties.
In view of the conclusions I have expressed
in respect to the point of law raised, I do not
find it necessary, nor desirable, to express any
opinion on what I termed the argument on the
merits.
I would therefore allow the appeal and quash
the suspension of the appellant's licence.
* * *
CHOQUETTE D.J.—I agree with my col
leagues, Mr. Justice Thurlow and Mr. Justice
Collier, that this appeal should be allowed.
In order to justify what is called a "severe
penalty" (report, p. 51), the questions submitted
by the Honourable Minister of Transport, or on
his behalf, or a supplementary question should
have specified the wrongful acts or defaults
which were imputed to the appellant, or at least
these questions should have asked the Court to
determine if such specified acts or defaults had
caused or contributed to the collision of both
ships.
Question 15 simply asks "Was the collision
caused or contributed to by the wrongful act or
default by any person or persons and if so, what
were these wrongful acts or defaults and by
whom were they committed" without specifying
any of them, without referring to the conduct of
the appellant and even without mentioning the
name of the appellant. It is only from the final
report that the appellant learned the precise
wrongful acts or defaults for which his licence
was suspended, at a time when it was too late
for him to offer a full defence against these
particular acts and defaults.
Questions imputing wrongful acts or defaults
on the part of the appellant cannot be found in
the long contradictory evidence tendered during
over four weeks of investigation. It is not the
witnesses who are authorized to state the ques
tions concerning the conduct of certificated
officers but the representative of the Depart
ment. (Shipping Casualties Rules, sections 17
and 18). These questions cannot either be found
in the final argument of the counsel for the
Department; they have to be stated "when the
examination of the witnesses called on behalf of
the Department has been concluded" and
before the officer involved had the opportunity
to produce his witnesses and submitted his
argument on the question stated (same Rules).
It would be unfair to oblige a certificated
officer to guess from the evidence or argument
what possible wrongful acts or defaults he may
be found guilty of (these may be 10 to 50)
without these acts or defaults being stated in a
question or questions concerning his conduct
and this before the second phase of the inquiry.
This is the more important with regard to the
cancellation or suspension of the certificate,
since the wrongful act or default must be one
that has caused (or contributed to) the accident
(Canada Shipping Act, section 558(1)).
Upon the whole, I would allow the appeal and
quash the order suspending the appellant's
certificate.
THURLOW J.:
The references in these reasons are to R.S.C. 1952, c.
29 as that was the statute in force when the collision
occurred and the proceedings in question took place.
COLLIER J.:
There was a slight change made in one of the questions
ultimately answered by the court of investigation; that
change, though relevant, is of no consequence in this
appeal.
2 It is interesting to note that in the final submission of
counsel for the respondent before the court of investigation,
a number of specific allegations were made against the
appellant, including, although not in precisely the same
words, the acts or defaults found by the court. The other
specific allegations were rejected by the court, to the extent
at least they were not found to be wrongful acts or defaults.
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.