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

British Columbia Ferry and Marine Workers’ Union v. Canada (Transport)
Court (s) Database
Federal Court Decisions
Date
2022-02-17
Neutral citation
2022 FC 209
File numbers
T-655-20
Decision Content
Date: 20220217
Docket: T-655-20
Citation: 2022 FC 209
Ottawa, Ontario, February 17, 2022
PRESENT: The Honourable Mr. Justice Pamel
IN THE MATTER OF THE CANADA SHIPPING ACT, 2001, SC 2001, c 26,
THE MARINE PERSONNEL REGULATIONS, SOR/2007-115,
BETWEEN:
BRITISH COLUMBIA FERRY AND
MARINE WORKERS’ UNION
Applicant
and
CANADA (MINISTER OF TRANSPORT) AND BRITISH COLUMBIA FERRY SERVICES INC.
Respondents
JUDGMENT AND REASONS
Table of Contents
I. Overview 2
II. Facts 5
III. Standard of review and applicable principles and legislation 12
IV. Analysis 17
A. Preliminary issues 17
(1) Standing of the Union 17
(2) Concern that the Union’s voice is not being heard 17
(3) Whether the A Matrix is determinative 18
(4) BC Ferries’ failure to use Application Form B 20
(5) Continued discretion on the part of Transport Canada to direct live on-board evacuation and safety drills 20
(6) Relevance of the Island Class ferries’ safety policies and procedures 21
(7) Sufficiency of the record 24
(8) Transport Canada’s consideration of international instruments 24
(9) Summary of the elements of the MPR, the A Matrix and the Muster List 30
B. Issues raised by the Union 36
(1) Was it unreasonable for Transport Canada to decide that a five-person crew could conduct safe deck and engineering watches during emergencies as required by subparagraphs 207(4)(b)(i) and (ii) of the MPR? 36
(2) Was it unreasonable for Transport Canada to decide that a five-person crew could perform specified emergency duties simultaneously as required by paragraph 207(4)(d) of the MPR? 41
(3) Was the determination of sufficient crew to undertake certain required tasks unreasonable? 46
(4) Was it unreasonable for Transport Canada to decide that a five-person crew could perform the evacuation procedures required by the LSER as set out in subsection 207(5) of the MPR? 57
V. Costs 61
ANNEX 64
I.
Overview
[1] In January 2020, British Columbia Ferry Services Inc. [BC Ferries], a publicly owned Canadian company and Canada’s largest ferry operator, took delivery in Vancouver of two newly built Island Class ferries, the Island Aurora and the Island Discovery [collectively, the Island Class ferries], as part of its fleet renewal program to replace two of its aging passenger and vehicle ferries operating on routes within the coastal waters of British Columbia. As Canadian flagged vessels registered in Victoria, the Island Class ferries are subject to the provisions of the Canada Shipping Act, 2001, SC 2001, c 26 [Act], and its regulations, in particular the Marine Personnel Regulations, SOR/2007-115 [MPR], which, along with the Act, require a vessel to be staffed with a sufficient number of competent crew for its safe operations and to have issued a safe manning document [SMD] specifying the minimum complement of crew—minimum safe manning levels [MSM levels]—as well as the remaining information set out in paragraph 202(3)(b) of the MPR.
[2] In March 2020, BC Ferries applied to Transport Canada for two SMDs for each of the new ferries, along with a proposal on MSM levels; two SMDs were requested for each ferry so as to accommodate fluctuations in passenger levels throughout the year. Transport Canada may issue multiple SMDs for a vessel setting different MSM levels to reflect the varying circumstances in which the vessel operates, such as the number of passengers or the nature of operations. BC Ferries’ application for a Class A SMD proposed a minimum complement of six crew for up to 394 passengers—a total of 400 people on board—while the application for a Class B SMD proposed five crew for up to 220 passengers—a total of 225 people on board. In April 2020, Transport Canada issued to BC Ferries a Class A SMD [the A Licence] with an MSM level of seven crew (one more than what BC Ferries proposed) when up to 400 people are on board, and a Class B SMD [the B Licence] with an MSM level of six crew (again one more than what BC Ferries proposed) when up to 225 people are on board.
[3] Following discussions between BC Ferries and Transport Canada—discussions which included the Canadian Ferry Association—on May 19, 2020, BC Ferries submitted a new application for a Class C SMD for the Island Class ferries, this time proposing an MSM level of five crew members (a master, a mate, an engineer, a deckhand and a single rating) for up to 150 people on board, which Transport Canada assessed and issued on May 25, 2020 [the C Licence] after concluding that a complement of five crew members met the standards set out in the MPR with up to 145 passengers on account of the Island Class ferries’ “automation, modern technology, alternative arrangements and additional equipment.” Transport Canada also advised BC Ferries that it was required to ensure that the Island Class ferries comply with all requirements of the MPR and the Fire and Boat Drills Regulations, SOR/2010-83 [FBDR], “at all times, particularly the effectiveness of the muster lists in meeting these requirements”. The two aging passenger and vehicle ferries which the Island Class ferries were meant to replace regularly sailed with a minimum complement of six and seven crew respectively.
[4] The British Columbia Ferry and Marine Workers’ Union [Union]—the trade union certified under the British Columbia Labour Relations Code, RSBC 1996, c 244, to represent, inter alia, the crew aboard the Island Class ferries—seeks judicial review of the decision to issue the C Licence to BC Ferries on the grounds that the Island Class ferries cannot, with a complement of five crew members, meet several of the BC Ferries’ fleet-and vessel-specific safety operations policies [the safety policies and procedures], including bridge watch, passenger control, rescue operations and firefighting, which are part of BC Ferries’ Safety Management System [SMS]—a system-based process to organize information for the management and mitigation of risk developed as part of the International Management Code for the Safe Operation of Ships and for Pollution Prevention [ISM Code]—nor the applicable statutory and regulatory requirements, including the MPR.
[5] I have not been persuaded that the decision by Transport Canada to issue the C Licence was unreasonable. I am being asked to reassess the evidence and substitute my own judgment for that of an experienced and professional five‑member panel at Transport Canada which, after not allowing an MSM level of five crew for up to 220 passengers, reviewed the material and determined that an MSM level of five was sufficient with up to 145 passengers on board; this I will not do and I am therefore dismissing the present application for judicial review.
II. Facts
[6] Although they are Canadian vessels (vessels registered in Canada and flying the Canadian flag), the Island Class ferries are not Safety Convention vessels—vessels to which the International Convention for the Safety of Life at Sea [SOLAS] mandatorily applies (section 2 of the Act). Transport Canada is in the process of amending the Safety Management Regulations, SOR/98-348, to phase in the adoption of SMSs in compliance with the ISM Code for, inter alia, Canadian vessels that are certified to carry more than 50 passengers, however, at the time of the decision to issue the C Licence, having an SMS in place was not mandatory for the Island Class ferries. That said, given the nature of its operations, BC Ferries was “ahead of the game” and nonetheless voluntarily developed an SMS in compliance with the ISM Code—which was adopted as part of SOLAS and which sets international standards for the safe management and operation of vessels as well as for pollution prevention. Under the ISM Code, an SMS must be established by or on behalf of the owners of a vessel, providing for the implementation of policies and procedures to achieve the safety management objectives set out in the ISM Code; the safety policies and procedures must be compiled into a comprehensive safety management manual.
[7] As regards BC Ferries, its safety policies and procedures are contained in both a fleet operations manual [FOM], which applies to all vessels in the BC Ferries fleet, as well as a vessel specific manual [VSM], which is for each individual vessel yet the safety policies and procedures therein are consistent with those found in the FOM. The safety policies and procedures are regularly reviewed and updated in response to internal audits (including spot checks) or changes in the legal and regulatory environment. External audits by the vessels’ classification society also regularly take place in compliance with the SMS for each vessel.
[8] Prior to March 2020, Transport Canada’s methodology for determining MSM levels used a singular approach and a common SMD application form regardless of the size or type of vessel [the previous MSM assessment process]; the process would take into account certain established generic characteristics of the vessel and would determine the MSM level based on a prescriptive scoring matrix in conjunction with the observations of, and assessment by, a Transport Canada marine safety inspector of live on-board boat and fire drills [evacuation and safety drills] conducted by the crew. Somehow the process was found to be rigid given the different types of vessels and different equipment on board, and this one-size-fits-all approach proved difficult when considering automatization and modern technology aboard vessels and a vessel’s SMS in the determination of safe manning levels.
[9] Following the issuance of a final research report entitled “Issuance of Safe Manning Documents for passenger ferries”, in November 2018, Transport Canada announced a review of its methodology for determining MSM levels at a Canadian Marine Advisory Council [CMAC] meeting. The announcement was made in conjunction with the release to marine industry stakeholders of a draft discussion paper with the proposed changes. Following submissions and comments from various stakeholders, including those of the Union, as well as stakeholder discussion and feedback sessions and workshops at subsequent national and regional CMAC meetings in 2019 and early 2020, on March 19, 2020, Transport Canada adopted its new SMD application process and guidelines for the assessment of a vessel’s MSM level [the new MSM assessment process]. This new process involves a risk-based approach to MSM level assessment and modifies procedural aspects of the previous MSM assessment process so as to allow owners to submit more detailed and vessel-specific information at the start of the application process—for example, details of advanced automation, modern technology, alternative arrangements and additional equipment including advanced emergency features. Another procedural change was that Transport Canada no longer required live on-board evacuation and safety drills by the crew when assessing a vessel’s MSM level; although actual demonstration of automation and additional equipment may warrant higher or lower crew numbers, there was no longer to be a practical demonstration of evacuation and safety drills, and a review of the muster list—as provided in the FBDR, being amongst other things, a description of the duties assigned to crew members and to be performed by them in relation to the passengers during an emergency—submitted along with the application was to be used to validate the exercise of the drills, a process called “validation through muster list”.
[10] The new MSM assessment process includes five new SMD applications instead of one, each with its own customized evaluation form and matrix (application forms A to E). Application Form A is for Category 1 vessels (being either Safety Convention vessels or vessels with an SMS) and would be reviewed under the new MSM assessment process by a five‑member national safe manning team [SMT]—a panel comprised of Transport Canada marine safety inspectors from the National Capital Region and the regions—which reviews the application material and independently assesses the proposed MSM level to determine compliance with the MPR. Review of application forms B through D is to be undertaken only by regional Transport Canada marine safety inspectors and is designed for non-Safety Convention vessels with no established SMS, including fishing vessels and smaller cable ferries. Application Form E is for renewals of SMDs where there are no changes to certain prescribed elements. Under the new MSM assessment process, owners propose an MSM level within their SMD application and must satisfy Transport Canada that the crew is competent and the number of crew proposed is sufficient to perform all safety functions, including in emergencies. As mentioned earlier, Transport Canada did not accept BC Ferries’ proposed MSM levels for the A and B Licences, but accepted the proposed crew complement of five for the C Licence when passenger levels are maintained at no more than 145 people.
[11] The Union did not challenge Transport Canada’s adoption of the new MSM assessment process implemented on March 19, 2020.
[12] For all of its Island Class ferries’ SMD applications, BC Ferries used Application Form A because the vessels were operating under an SMS; BC Ferries wanted Transport Canada to determine MSM levels in recognition of the vessels’ special automated features and modern technology, including automatically activated or remotely operated fixed firefighting equipment such as a drencher system and water mist systems in the machinery and crew spaces that can be activated remotely from the central control station on the bridge, from the technical space on deck level 1, as well as from the engineering room—with control transferrable from each console—a car deck deluge system over the covered section of the car decks, fixed fire monitors for the open space car decks, with closed circuit television cameras, smoke and heat detectors throughout the vessel with all spaces also fitted with passive structural fire protection, and a marine evacuation system [MES] which can evacuate passengers via slides to inflatable life rafts—advancements in technology that reduce the number of crew members needed to perform certain tasks in emergency situations.
[13] In support of its Class A and B SMD applications submitted on March 3, 2020—two weeks prior to the formal implementation of Transport Canada’s new MSM assessment process but nonetheless assessed in accordance with the new process—BC Ferries also submitted, along with the completed Application Form A, a series of documents including a description of the automated equipment and features of the vessels and of the other regulated equipment, a muster list consisting of, for the Class A application, six crew for up to 394 passengers, and for the Class B application, five crew for up to 220 passengers, personalized duty tabs for the crew, BC Ferries’ Document of Compliance [DOC] which confirms that the company is operating its fleet of passenger ferries in compliance with the ISM Code, evidence of consideration of the guidelines set out in Annex 1 and 2 of the International Maritime Organization [IMO] Resolution A.1047(27)—the Principles of Minimum Safe Manning (which updates IMO Resolution A.890(21) and is substantially similar to International Labour Organization [ILO] Resolution A.1047(27))—[IMO Resolution A.1047(27)], an emergency response tabletop exercise [tabletop exercise] undertaken as part of BC Ferries’ internal risk assessment of minimum safe manning levels conducted in accordance with BC Ferries’ SMS, the Island Class ferries’ Shipboard Oil Pollution Emergency Plan, the vessels’ agreements with the local oil pollution response organization and detailed plans for the Island Class ferries. BC Ferries’ internal risk assessment of minimum safe manning levels culminated in the preparation of the Island Class Minimum Safe Manning Risk Assessment Report [MSM Risk Assessment Report], which was also submitted once finalized on April 3, 2020, and following the request of Transport Canada to do so. I should mention that although the DOC was issued in October 2019—prior to the Island Class ferries becoming operational—the safety management certificates [SMC] for the Island Class ferries verifying their compliance with the ISM Code were issued after the decision to issue the C Licence: the SMC for the Island Discovery was issued in May 2020 and the SMC for the Island Aurora was issued in June 2020.
[14] Upon receipt of BC Ferries’ Application Form A along with the supporting documents, Transport Canada assembled its five‑member SMT to process the applications. The SMT used a document entitled Minimum Safe Manning Evaluation Form for Category A Vessels [the A Matrix]—a methodical option-driven series of tables and notes with references to the MPR—to perform its assessment and determination of the Island Class ferries’ MSM levels. Ultimately, the vessels’ MSM level is the highest number of crew determined to operate in any one of the four matrix sections. There is no issue as between the parties that, regardless of the application form submitted to obtain an SMD, the relevant matrix used by Transport Canada is not intended to be a public document or a formal set of reasons; the matrices are internal documents that are completed and used by Transport Canada as a tool to determine whether the requirements of the MPR are met. Moreover, the MSM level requirements under the MPR are only a minimum threshold; owners may implement higher manning levels when appropriate. Subsection 82(2) of the Act requires a vessel’s master to ensure that the vessel operates with enough crew to safely undertake its intended voyage; higher staffing levels may be set when necessary in specific circumstances. In the end, as stated, Transport Canada proceeded to issue to BC Ferries in April 2020 an A Licence with an MSM level of seven crew (one more than what BC Ferries proposed) and a B Licence with an MSM level of six crew (again one more than what BC Ferries proposed), for up to 400 and 225 people on board, respectively.
[15] Specifically as regards its application for its Class C SMD in May 2020, BC Ferries submitted a freshly completed Application Form A along with a revised muster list [the Muster List] reflecting five crew for up to 145 passengers; the supporting documents submitted earlier for the A Licence and B Licence remained on file and were included in the assessment process for the Class C SMD. As stated, Transport Canada issued the C Licence to BC Ferries on May 25, 2020, the decision of which is the subject of the present application for judicial review.
[16] It is to be noted that BC Ferries’ applications for SMDs did not include any safety policies and procedures, whether fleet-or vessel-specific. Concurrently with the preparation of the MSM Risk Assessment Report in early April 2020, a team was set up by BC Ferries which included a senior master and chief engineer to begin preparing the initial draft of the Island Class ferries’ VSMs. The Union’s record before me contains VSM documents for the Island Class ferries updated to June 7, 2020. The evidence of BC Ferries confirms that those VSM documents were initially prepared on the basis of the Island Class ferries obtaining their A Licence and B Licence and that those documents are in the process of being further updated to take into account the issuance of the C Licence. In any event, what is important to note is that no Island Class ferries safety policies and procedures were before, or considered by, the SMT at the time of the decision to issue the C Licence to BC Ferries.
[17] The Union’s principal argument is that the Muster List—what the Union says represents the minimum crew requirements for compliance with the various parts of the MPR—does not match up to what Transport Canada determined to be the appropriate staffing levels. In short, the Union asserts that BC Ferries would not be able to (i) maintain the required deck and engineering watches during emergencies, (ii) perform specified emergency duties simultaneously as required by the regulations, and (iii) perform evacuation procedures, with a complement of five crew on board the Island Class ferries.
III. Standard of review and applicable principles and legislation
[18] There is no dispute between the parties that reasonableness is the applicable standard of review. I agree. As set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], when assessing whether a decision is reasonable, it is not simply a question of whether the decision falls within a range of possible outcomes, but rather “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at paras 83 and 99; Montreal (City) v Old Port of Montreal Corporation Inc., 2021 FC 806 at para 35). The standard of reasonableness would also apply to Transport Canada’s interpretation of its home statute—the Act and its regulations—in a manner that reflects international law. As was recently set out by the Federal Court of Appeal in Canada (Attorney General) v Kattenburg, 2021 FCA 86 [Kattenburg], the principles of international law, should they bear on the issue to be decided, are “merely part of the context that can inform the interpretation” of the applicable legislation (Kattenburg at paras 5 and 6). In addition, the review of an administrative decision cannot be divorced from the institutional context in which the decision was made, and in conducting reasonableness review, the reviewing judge should be attentive to the application of specialized knowledge by the decision-makers; “[t]his demonstrated experience and expertise may also explain why a given issue is treated in less detail” (Vavilov at paras 91 and 93). Moreover, assessments and determinations “legitimately drawn from the expertise or specialization of administrative decision-makers, all other things being equal, similarly may be unconstrained and may be harder to set aside” (Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 at para 30).
[19] As stated, the decision to issue the C Licence did not include formal reasons; following the assessment by the SMT of BC Ferries’ application, the C Licence was simply issued as proposed by BC Ferries. In discussing the standard of review in the absence of reasons, the Supreme Court in Vavilov provided the following guidance:
[136] Where the duty of procedural fairness or the legislative scheme mandates that reasons be given to the affected party but none have been given, this failure will generally require the decision to be set aside and the matter remitted to the decision maker: see, e.g., Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 35. Also, where reasons are provided but they fail to provide a transparent and intelligible justification as explained above, the decision will be unreasonable. In many cases, however, neither the duty of procedural fairness nor the statutory scheme will require that formal reasons be given at all: Baker, at para. 43.
[137] Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided. This will often occur where the decision-making process does not easily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders a decision by holding a vote: see, e.g., Catalyst; Green; Trinity Western University. However, even in such circumstances, the reasoning process that underlies the decision will not usually be opaque. It is important to recall that a reviewing court must look to the record as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision: Baker, at para. 44. For example, as McLachlin C.J. noted in Catalyst, “[t]he reasons for a municipal bylaw are traditionally deduced from the debate, deliberations, and the statements of policy that give rise to the bylaw”: para. 29. In that case, not only were “the reasons [in the sense of rationale] for the bylaw . . . clear to everyone”, they had also been laid out in a five-year plan: para. 33. Conversely, even without reasons, it is possible for the record and the context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason, as, for example, in Roncarelli.
[138] There will nonetheless be situations in which no reasons have been provided and neither the record nor the larger context sheds light on the basis for the decision. In such a case, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable. But it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process. This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape.
[Emphasis added.]
[20] To begin with, it may be easiest to set out what this case is not: this is not a case where the duty of procedural fairness or the legislative scheme requires that reasons be given or a case where a vote is determinative of the decision, nor is it a case where I cannot discern how Transport Canada construed the relevant legislation (Kattenburg at para 16). I accept that the record does not explicitly address the reasoning of the SMT behind the application of the MPR requirements to the BC Ferries’ application for a Class C SMD, however, the approach taken by all parties in their submissions in assessing the reasonableness of the decision to issue the C Licence was to begin with the review of the completed A Matrix as the assessment tool used to conduct the SMT’s internal deliberations and discussions. When I pointed out to counsel for Transport Canada that the Court must still be able to “connect the dots” in the SMT’s reasoning leading to the decision to issue the C Licence, counsel argued that the A Matrix serves that purpose by showing on a point-by-point basis how the regulations were complied with (Komolafe v Canada (Minister of Citizenship and Immigration), 2013 FC 431 at para 11; Vavilov at para 97). The Union took no issue with this approach, although it asserted that such an approach actually establishes that the C Licence is not in compliance with the governing regulations.
[21] Accordingly, nor is this a case similar to Catalyst Pharmaceuticals, Inc v Canada (Attorney General), 2021 FC 505 [Catalyst Pharmaceuticals], where Madam Justice St-Louis was recently called upon to determine the standard of review in the absence of formal reasons yet was faced with “two barriers to conducting a typical reasonableness review”: there were no reasons provided by the decision-maker (in that case the Minister of Health) in coming to her decision to issue a notice of compliance with respect to a pharmaceutical company’s new drug, and (more importantly as regards the matter before me) the record itself shed no light upon the Minister’s interpretation of the relevant statutory provisions. In the matter before me, I am satisfied that the record does shed at least some light upon the SMT’s interpretation of the requirements of the MPR and on the reasons why Transport Canada decided in the way it did (Leahy v Canada (Citizenship and Immigration), 2012 FCA 227 at paras 36 to 42).
[22] In any event, the decision to issue the C Licence is the result of the assessment by a regulatory body with specialized knowledge and expertise in the complex area of navigation and shipping, whose role it is to review what is tantamount to a permit or licence request and make certain that the applicable standards for the safe operation of vessels required by the governing statute and regulations have been respected. Although the issuance of an SMD is mandatory for the Minister upon receipt of an application (subsection 202(3) of the MPR), the determination of MSM levels pursuant to section 207 of the MPR is discretionary and subject to the assessment by Transport Canada that compliance with subsections 207(3) to (6) of the MPR has been met—this requires, I would add, expertise in ship operations and the application of the principles of good seamanship by the Transport Canada marine safety inspectors. Although the record is limited, I find that it does assist in understanding the reasons for the decision to issue the C Licence (Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 at para 36).
[23] In addition, I have reproduced in the annex to my decision the relevant sections of the Act and the MPR; section 207 of the MPR in particular sets out the four MSM level scenarios for the determination of the minimum complement requirements for ship operations. The main thrust of the Union’s arguments is that a minimum complement of five crew cannot meet the emergency response requirements of subsection 207(4) of the MPR.
IV. Analysis
A. Preliminary issues
(1) Standing of the Union
[24] I should first mention that no issue was taken by the respondents with respect to the Union’s standing in the present application for judicial review; in fact, the Minister accepts that the Union does have standing. For my part, I see no reason to question it.
(2) Concern that the Union’s voice is not being heard
[25] In its affidavits in support of its position, the Union takes issue with what it sees as the decreased involvement of its members in the determination of MSM levels for vessels under the new MSM assessment process as well as what it claims is Transport Canada’s failure to take into account seafarers’ views when it comes time to assess the application of safety regulations; in particular, the Union has argued that Transport Canada should make all applications for an SMD a matter of public record, open for review and subject to submissions from all those at interest, in particular the unions representing seafarers. The Union points to the ILO Maritime Labour Convention, 2006 [MLC 2006]—included in Schedule 1 of the Act, thus enabling Transport Canada to implement provisions of the MLC 2006 through the MPR (subsection 29(1) and paragraph 35(1)(d) of the Act)—and in particular Guideline B2.7.1 of MLC 2006 to support its argument that it has a right to participate in the operation of the “machinery for the investigation and settlement of complaints or disputes concerning the manning levels on a ship.”
[26] I am sympathetic to the Union’s concerns; seafarers are at the forefront of emergency response aboard vessels and are instrumental in safeguarding the well-being of passengers and all those on-board. However, their level of involvement in the regulatory process, in particular the determination by Transport Canada of MSM levels for vessels, is not at issue before me; as mentioned, the Union has not challenged Transport Canada’s new MSM assessment process before this Court. The only issue therefore before me in the present application for judicial review is whether, in line with the new MSM assessment process, the decision to issue the C Licence was unreasonable given the applicable regulatory landscape.
(3) Whether the A Matrix is determinative
[27] During its submissions before me, BC Ferries put much emphasis on the proposition that the new MSM assessment process is a “risk-based assessment”. Under this approach, the completed A Matrix would not be determinative as to MSM levels as it would only contain information which the SMT would then consider to determine whether an applicant’s proposed MSM levels were commensurate with the risks identified in the application. I do not see how an argument which goes to undermine the determinative value of the A Matrix assists BC Ferries. If the A Matrix is not determinative, and somehow other principles or broader policy considerations play into the SMT’s assessment of MSM levels, then it is imperative that such considerations be part of the record. On this issue, I prefer the position set out by Transport Canada, to wit, that the A Matrix prepared by the five‑member SMT is determinative in the assessment of the MSM level for a particular vessel. I would think that any policy considerations or the application of the principles of good seamanship during the SMT’s internal deliberations and discussions have already gone into the determination reflected in the A Matrix; the A Matrix is the result of those deliberations and discussions. The SMT’s determination of MSM levels is a function of the applicable regulatory requirements and not one made in the abstract. Nothing in the MPR suggests that the SMT can disregard the MPR requirements and base its decision only on the risks posed by a proposed MSM level; in the end, no risk-based approach can act as an override of regulatory compliance. In addition, and from the perspective of a reviewing court, if the completed A Matrix is not determinative of the SMT’s decision to issue, in this case, the C Licence, Transport Canada risks its decision being viewed as one whereby it is looking to immunize its decision by withholding documents and information necessary for judicial review or by failing to give explanations and rationales for decision-making in application of the “‘trust us, we got it right’ approach” (Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 at para 105 [Canadian Council]); that may not end well for Transport Canada. No level of deference by a reviewing court on account of the purported expertise of a decision-maker such as Transport Canada can shield its decisions from judicial review, and defending the reasonableness of a decision to issue an SMD which does not match up with the assessment tool matrices that are part of the record then becomes precarious and an arduous task at best. In arguing that the A Matrix was not determinative, BC Ferries would have me believe that it is not an appropriate document to evaluate the SMT’s assessment of the MSM level for the Island Class ferries and ultimately the decision to issue the C Licence. If it were true that the information contained in the A Matrix is just that, information, and that it is not determinative of the SMT’s assessment, the Court would be left with only supposition and arguments to perform its own duties on judicial review. I note in the evidence that three members of the SMT must be in agreement with the assessment of the MSM level for the SMD to be issued. If at least three members of the SMT cannot reach a consensus, the matter is escalated to, ultimately, the Director General of Marine Safety and Security of Transport Canada for a final decision, at which point the record should be sufficient to allow a reviewing court to “connect the dots” and determine if the final decision with respect to the issuance of an SMD was “transparent, intelligible and justified” (Vavilov at para 15).
(4) BC Ferries’ failure to use Application Form B
[28] The Union argues that had BC Ferries used Application Form B—meant for non‑Safety Convention vessels or vessels without an SMS—the process for the Class C SMD would have yielded an MSM level of seven crew for the Island Class ferries. That may be so, however, I fail to see how this argument assists the Union. BC Ferries did not use Application Form B, nor was it obliged to. Rather, the company used Application Form A, triggering a review by a five‑member panel of Transport Canada, and so as to be able to highlight the fact that the company was operating in accordance with an SMS and was ISM Code compliant, and that the vessels were equipped with automated safety and life saving equipment which reduced the need for the physical attendance of crew during every aspect of emergency response—aspects which would not have been part of the new MSM assessment process under Application Form B. In the end, it was up to the SMT to assess how those elements factor into the determination of MSM levels for the vessels as called for by the governing regulations.
(5) Continued discretion on the part of Transport Canada to direct live on-board evacuation and safety drills
[29] As mentioned, the new MSM assessment process no longer requires Transport Canada marine safety inspectors to witness live on-board evacuation and safety drills conducted by the crew, as this exercise was replaced by the “validation through muster list” process. In fact, note 11 of the explanatory notes to the A Matrix indicates: “There shall be no practical demonstration of a Boat and Fire Drill as the review of the Muster List should validate that exercise.” That said, the explanatory notes to the A Matrix are meant to inform the marine safety inspectors who are completing the document but cannot fetter their discretion in the manner in which they assess MSM levels pursuant to the MPR. I must agree with the Union that it remains within the discretion of Transport Canada to direct that such drills take place for MSM assessment if required and that the exercise of that discretion, one way or the other, may impact the reasonableness of its decision in respect of the issuance of an SMD. The Union argues that it was not clear from the documents submitted by BC Ferries what the required minimum staffing of the Island Class ferries was to be, and thus Transport Canada should have nonetheless exercised its discretion and directed that on-board evacuation and safety drills be undertaken to validate the ultimate decision; not doing so, argues the Union, rendered the decision to issue the C Licence unreasonable. It seems to me that it remains the burden of the Union to establish that the exercise of discretion by Transport Canada not to direct that on-board drills be conducted in this case was not only itself unreasonable, but also determinative in the decision to issue the C Licence. In this case, I have not been persuaded that the failure on the part of Transport Canada to conduct an evacuation and safety drill was unreasonable under the circumstances.
(6) Relevance of the Island Class ferries’ safety policies and procedures
[30] Although no Island Class ferries FOM or VSM documents were before the SMT during the assessment of BC Ferries’ application for a Class C SMD, as stated, the record before me contains fleet-and vessel-specific safety policies and procedures updated to June 7, 2020, which, according to BC Ferries, are currently being updated to account for the newly issued C Licence. Two issues arise in this case: first, the Union argues that as BC Ferries elected to use Application Form A, it was under an obligation to provide its safety policies and procedures at the same time because explanatory note 9 to the A Matrix instructs that all SMS documents be provided by the applicants. Accordingly, any decision under Application Form A which does not include SMS documents must therefore, argues the Union, be unreasonable. The Union also points to the PowerPoint presentation of Transport Canada given during the lead-up to the formal implementation of the new MSM assessment process which specifies that any application using Application Form A “shall” be supported by SMS documents. To bolster its case, the Union points to the Transportation Safety Board of Canada [TSB] report on the incident involving the Island Queen III on August 8, 2017, to explain and highlight the background, importance and principal objec