British Columbia Ferry and Marine Workers’ Union v. Canada (Transport)

In Carriage of Passengers by Sea, Judicial Review, Uncategorized on

Facts: In early 2020 BC Ferries took delivery of two Island Class ferries which were registered in Canada and subject to the Marine Personnel Regulations. The Regulations require a safe manning document specifying the minimum crew complement for each Canadian registered vessel. In March 2020 BC Ferries applied for and obtained from Transport Canada safe manning documents for each vessel requesting a Class A safe manning document for 6 crew/394 passengers and Class B safe manning document for 5 crew/220 passengers. A few months later BC Ferries applied for and obtained a Class C safe manning document for 5 crew/145 passengers. The union representing BC Ferries then brought a judicial review of Transport Canada’s decision to issue the C Licence on the grounds that the two vessels with a compliment of 5 crew cannot meet several of the BC Ferries safety policies, including bridge watch, passenger control, rescue operations and firefighting. The C Licence crew compliment was argued to be against ISM code and Marine Personnel Regulations.

Decision: Application for judicial review dismissed.

Held: The standard of review is that of reasonableness. As there was no written reasons provided for the issuance of the C Licence by Transport Canada, the Court’s review was focused on the outcome of the decision to issue the licence rather than on Transport Canada’s reasoning process to issue same.  S. 207 of the Regulations provides different scenarios on which Transport Canada would determine the minimum number of crew required for normal operation, emergency, evacuation and post-abandonment. The highest number of crew from each of the four scenarios would become the minimum compliment for the Island Class ferries. The Court held that the decision a five-person crew could conduct safe deck and engineering watches during emergencies, and preform specified emergency duties simultaneously under s. 207(4)(d) of the Regulations was reasonable. The Court further found that the determination of 5 crew to undertake firefighting duties, passenger control, and preparation for launching of survival craft was reasonable, and also held it was reasonable that five crew could preform evacuation procedures under the Life Saving Equipment Regulations as well as carry out the muster list and evacuation drills.