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A-550-75
Lucien Champoux (Applicant)
v.
Great Lakes Pilotage Authority (Respondent)
Court of Appeal, Jackett C.J., Pratte J. and Hyde D.J.—Montreal, March 30 and April 1, 1976.
Judicial review—Maritime law Pilotage Authority can celling pilot's licence without providing opportunity to be heard—Whether condition precedent to validity of cancella- tion—Federal Court Act, s. 28—Pilotage Act, S.C. 1970-71- 72, c. 52, ss. 3, 12, 15(5),(6), 17-20.
Applicant's pilotage licence was cancelled by respondent without first giving him an opportunity to answer allegations on the basis of which the action was taken.
Held, granting the application, the resolution cancelling the licence is set aside. Under the Pilotage Act, a licence "remains in force while the ... pilot is able to meet the qualifications prescribed" (section 15(5)); where he cannot, a duty is cast on the Authority to cancel (sections 15(6) and 19(2)). Section 17, read with section 18, provides the machinery for cancellation. In effect, the Authority can "cancel" a licence if the Chairman has suspended it under section 17(1) and reported it under section 17(3), if the Authority has given written notice to the licensee (section 17(4)), and afforded him a reasonable oppor tunity to be heard (section 18(2)). Here, these conditions precedent to cancellation under section 17 do not appear to have been met. The cancellation is said to have been made under section 19(2). Respondent has contended that section 19 authorizes cancellation without a hearing, which would render a section 19(2) cancellation purely administrative, and mean that the attack must be rejected. Section 17(4)(c) confers a discretion to cancel or not in any one of the cases set out in section 17(1) when there is "reason to believe" that any one of such cases exists. Sections 19(2) and 15(6) impose a duty, and imply a power to cancel "where a ... pilot ... does not meet the qualifications." It is possible that when acting under section 17(4)(c), the Authority is exercising a very important discre tionary power to terminate the licensee's rights while, when acting under sections 15(6) and 19(2), the Authority is simply reflecting the fact that a licence has ceased to be valid by cancelling the written evidence of it. Such a cancellation would be a nullity if the pilot had not first ceased to meet the prescribed qualifications. However, such a view poses difficul ties. The section 17(4) power to cancel covers not only cases of misconduct, but instances where, because the licensee no longer meets the prescribed qualifications, such rights have already automatically been terminated by virtue of section 15(5). And, the duty and implied power in section 19(2) would seem to be substantially the same as that in section 15(6), and thus subject to the section 18(1) requirement of an opportunity to be heard. In setting aside the cancellation, the Court is not determining that applicant has the rights conferred on a person by the granting of a licence, nor restoring them to him.
JUDICIAL review. COUNSEL:
A. Lortie for applicant.
B. M. Deschênes, Q.C., for respondent.
SOLICITORS:
Desjardins, Ducharme & Associates, Mont- real, for applicant.
De Grandpré, Colas & Associates, Montreal, for respondent.
The following are the reasons for judgment delivered orally in English by
JACKETT C.J.: This is a section 28 1 application to set aside an order of a Pilotage Authority made on August 6, 1975, cancelling the licence that had been issued to the applicant under the Pilotage Act, S.C. 1970-71-72, c. 52.
It is common ground that such cancellation was effected without first giving the applicant an op portunity of answering the allegations on the basis of which such action was taken. The sole question
See section 28 of the Federal Court Act, subsection (1) of which reads as follows:
28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
to be decided on this application is whether such an opportunity was a condition precedent to the validity of such a cancellation order.
The Pilotage Act 2 establishes Pilotage Authori ties (section 3) to establish, operate, maintain and administer "in the interests of safety" an efficient pilotage service for each region assigned to an Authority (section 12).
The statute contemplates "compulsory pilotage areas" within which a ship may not employ any person as a pilot other than a licensed pilot and contemplates that the Pilotage Authority will issue licences to persons who meet the qualifications prescribed by the Governor in Council and that Authority (section 15). A licence so issued "remains in force while the licensed pilot ... is able to meet the qualifications prescribed ..." (section 15(5)); when he is unable to meet such qualifications, a statutory duty is cast on the Au thority to "cancel" his licence (section 15(6) and section 19(2)); and when a licence is cancelled, the "licence" must be delivered up (section 20).
It is obviously important to a safe pilotage scheme that such a licence can, if the circum stances require it, be suspended or cancelled by the appropriate authority. Section 17, which must be read with section 18, provides machinery for such action. Those sections read:
17. (1) The Chairman of an Authority may suspend a licence or pilotage certificate for a period not exceeding fifteen days where he has reason to believe that the licensed pilot or the holder of a pilotage certificate
(a) has, while he has had the conduct of a ship or has been on duty on board ship pursuant to a regulation of an Author ity requiring a ship to have a licensed pilot or holder of a pilotage certificate on board, contravened a provision of subsection (3) or (4) of section 16;
(b) has reported for duty in circumstances such that, if he had been on duty, he would have been in contravention of a provision of subsection (3) of section 16;
(c) has been negligent in his duty; or
(d) does not meet the qualifications required of a holder of a licence or pilotage certificate.
(2) Where the Chairman of an Authority suspends a licence or pilotage certificate orally he shall, within forty-eight hours of the suspension, confirm the suspension in writing together
2 Reference in these Reasons to sections by number only will be references to such sections in the Pilotage Act unless the context otherwise requires.
with the reasons therefor to the licensed pilot or holder of the pilotage certificate at his address as shown on the register kept by the Authority pursuant to section 21.
(3) Where the Chairman of an Authority suspends a licence or pilotage certificate he shall, within forty-eight hours of the suspension, report the suspension to the Authority.
(4) Where the Authority receives a report pursuant to sub section (3), it may
(a) approve or revoke the suspension under subsection (I),
(b) suspend the licence or pilotage certificate
(i) for a further period not exceeding one year, or
(ii) for an indefinite period until the licensed pilot or holder of a pilotage certificate shows that he is able to meet the qualifications prescribed by the regulations, or
(c) cancel the licence or pilotage certificate,
but no action shall be taken pursuant to paragraph (b) or (c) unless, before the suspension authorized by the Chairman under subsection (1) terminates, the Authority gives written notice to the licensed pilot or holder of a pilotage certificate setting out the action the Authority proposes to take and the reasons therefor.
18. (1) An Authority shall, before refusing to issue a licence or pilotage certificate or cancelling a licence or pilotage certifi cate pursuant to subsection (6) of section 15, afford the appli cant therefor or holder thereof or his representative a reason able opportunity to be heard.
(2) Where the Authority gives written notice to a licensed pilot or the holder of a pilotage certificate that it proposes to suspend his licence or pilotage certificate for a further period or to cancel his licence or pilotage certificate pursuant to subsec tion (4) of section 17, the Authority shall afford the holder of the licence or pilotage certificate or his representative a reason able opportunity to be heard before the action is taken.
(3) Where a hearing is to be held as provided by subsection (1) or (2) and the applicant for a licence or pilotage certificate, or the holder of a licence or pilotage certificate, as the case may be, requests a public hearing, or where the Authority is satis fied that it would be in the public interest to hold a public hearing, the Authority shall hold a public hearing and hear all persons having an interest in the matter who wish to be heard in connection therewith.
(4) The Authority has, in relation to any hearing before it, all the powers of a commissioner under Part I of the Inquiries Act.
(5) An applicant who is refused the issue of a licence or pilotage certificate or the holder of a licence or pilotage certifi cate that is suspended or cancelled pursuant to section 15, 17 or 19 may, after a hearing by an Authority under this section, apply to the Minister for a review of the decision of the Authority and where, after considering the application and any material submitted therewith, the Minister is of the opinion that the issue of the licence or pilotage certificate should not have been refused or the licence or pilotage certificate should
not have been suspended or cancelled, the Minister may direct the Authority to
(a) issue the licence or pilotage certificate;
(b) rescind the suspension or cancellation of the licence or pilotage certificate; or
(c) reduce the period of the suspension, on such conditions, if any, relating to the licence or pilotage certificate as the Minister deems proper.
In effect, these provisions authorize an Author ity to "cancel" a licence if
(a) the Chairman has suspended it under sec tion 17(1) and has reported under section 17(3);
(b) the Authority has given the licensee written notice as contemplated by section 17(4); and
(c) the Authority has afforded the licensee a reasonable opportunity to be heard under sec tion 18(2).
In this case, it would not appear that these condi tions precedent to cancellation of a licence under section 17 had all been met; the cancellation is, instead, said to have been made under section 19(2). Section 19 reads as follows:
19. (1) A licence ceases to be valid when a licensed pilot
(a) who is an employee of an Authority ceases to be employed as a licensed pilot, or
(b) who is a member or shareholder of a body corporate referred to in subsection (2) of section 9 ceases to be a member or shareholder of the body corporate.
(2) An Authority shall cancel a licence or pilotage certifi cate when a licensed pilot or holder of a pilotage certificate does not meet the qualifications required of a holder of a licence or pilotage certificate.
With section 19(2) there should be compared sec tion 15(6), which reads:
(6) Where a licensed pilot or holder of a pilotage certificate is unable to meet the qualifications prescribed by the regula tions for the class of licence or pilotage certificate that he then holds, an Authority shall cancel the existing licence or pilotage certificate, and if the licensed pilot or holder of a pilotage certificate is able to meet the qualifications for a licence or pilotage certificate of a different class shall issue a licence or pilotage certificate of that different class to the licensed pilot or holder of a pilotage certificate.
As I understand it, the only question in this case arises out of the contention of the respondent, which is disputed by the applicant, that section 19 authorizes cancellation of a pilot's licence without
his having been given any opportunity to be heard. The result of such contention, if it is sound, is that
(a) a section 19(2) cancellation is a purely administrative action that cannot be reviewed by this Court under section 28, and
(b) the attack on the cancellation order based on the failure to give such an opportunity must, in any event, be rejected.
I have great difficulty in spelling out of the Pilotage Act separate and sensible functions for section 15(6), section 17(4)(c) and section 19(2).
I do detect a real verbal and substantive distinc tion between section 17(4)(c) on the one hand and section 15(6) and section 19(2) on the other hand. Read in the ordinary way, section 17(4)(c) confers a discretion to cancel or not to cancel in any of the cases spelled out in section 17(1), which includes not only cases of misconduct but also cases of disqualification. Such discretion exists when there is "reason to believe" that one of such cases exists. On the other hand, section 19(2) and section 15(6) impose a duty (which implies a power) to cancel "when a licensed pilot ... does not meet the qualifications ...". One tenable view, I suggest, is that, when acting under section 17(4)(c), the Au thority is exercising a very important discretionary power to terminate the rights conferred on the holder of a pilot's licence, while, when acting under section 15(6) and section 19(2), the Author ity is merely reflecting the fact that a licence has ceased to be valid by cancelling the written evi dence of it, which is also called a "licence". On this view, a cancellation under section 15(6) or section 19(2) would be ineffective and a nullity if the pilot had not, in fact, ceased, before the pur ported cancellation, to meet the prescribed qualifi cations; and the purported cancellation would in any such case be a nullity, which could be estab lished by proving the correct facts whenever and in whatever court the question might arise.
However, from the point of view of an intelli gible legislative scheme, there are, as it seems to
me, certain difficulties in the way of adopting this view of the legislative intention, viz:
(a) in so far as the section 17(4) power to cancel is concerned, it extends not only to cases of misconduct, where the substantive rights con ferred by the licence continue to exist and may, in the discretion of the Authority, be terminated in the proper exercise of a disciplinary power, but it extends also to cases where, because the holder of the licence no longer meets the pre scribed qualifications, such rights have already automatically terminated by virtue of section 15(5); and
(b) the duty (and implied power) contained in section 19(2) would seem to be substantially the same duty (and power) as that contained in section 15(6) and to be, therefore, subject to the requirement in section 18 (1) that it not be exer cised until the holder of the "licence" has been afforded an opportunity to be heard.
Furthermore, it is to be noted that, while a licence ceases to have operative effect when the holder ceases to meet the prescribed qualifications, a power to "cancel" a licence on that ground without a hearing would include, not only a power to require a person to deliver up a "licence" when he has in fact ceased to meet the qualifications, but also an arbitrary power to create a situation where a person is, in fact, required to deliver up his "licence" without his having had an opportunity to rebut an allegation that he has ceased to meet the prescribed qualifications (section 20) unless he is prepared to seek relief in the courts from the exercise of that arbitrary power.
For the above reasons, I have concluded that the applicant is entitled to have the Resolution passed by the Board of Directors of Great Lakes Pilotage Authority on August 6, 1975, set aside in so far as it purported to cancel the applicant's licence as a pilot, because it was made without his first having been afforded a reasonable opportunity to be heard.
It must be understood, however, that, when the Court sets aside the cancellation of his "licence", the Court is not determining that the applicant has the rights, and is not restoring to him the rights, conferred upon a person by the grant of a licence under the Pilotage Act. Whether or not he enjoys
such rights depends upon the provisions of the statute (e.g. section 15(5)). The duty (and the power) of the Pilotage Authority to cancel a licence because the holder has ceased to enjoy such rights is conditioned upon the Authority first giving to the holder an opportunity to be heard. All that is necessary to make the applicant entitled to the judgment that I am proposing is that the Pilotage Authority cancelled the applicant's licence without complying with that condition. I am sure that it is not necessary to remind the applicant of the continuing effect of section 15(5) and section 16(3) or to remind the Pilotage Au thority of its continuing duty under section 12, section 15(6) and section 19(2).
I propose that the section 28 application be granted and that the Resolution passed by the Board of Directors of Great Lakes Pilotage Au thority on August 6, 1975 be set aside in so far as it purported to cancel the applicant's licence under the Pilotage Act.
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PRAT`rE J. concurred.
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HYDE D.J. concurred.
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