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Transport Canada

Disclaimer: These documents are not the official versions (more).

Shipping Inquiries and Investigations Rules

CRC, Vol. XVII, c. 1479

RULES RESPECTING PRELIMINARY INQUIRIES

AND FORMAL INVESTIGATIONS INTO

SHIPPING CASUALTIES AND RELATED MATTERS

Short Title

1. These Rules may be cited as the Shipping Inquiries and Investigations Rules.

Interpretation

2. In these Rules,

"Act" means the Canada Shipping Act; (Loi)

"assessor" means a person appointed by the Minister under subsection 552(1) of the Act; (assesseur)

"commission counsel" means a counsel employed by the Minister to assist the court holding an investigation; (avocat de la commission)

"commissioner" means a person appointed by the Minister to hold an investigation under section 548 of the Act; (commissaire)

"court" means a court referred to in subsections 548(1) and (2) of the Act; (cour)

"inquiry" means a preliminary inquiry under subsection 545(1) of the Act; (enquête)

"investigating officer" means a person appointed by the Minister to make an inquiry; (enquêteur)

"investigation" means a formal investigation under section 550 of the Act. (investigation)

PRELIMINARY INQUIRIES

Inquiry in Camera

3. (1) An inquiry shall be held in camera.

(2) No person may attend an inquiry other than the following:

(a) the investigating officer;

(b) a person or persons requested by the investigating officer to advise him;

(d) counsel for a person referred to in paragraph (c) while that person actually gives evidence.

Report

4. No person, other than the Minister, may divulge to any person the contents of any report sent to the Minister under section 547 of the Act or any evidence or information obtained during the course of any inquiry.

PART II

INVESTIGATIONS

Notice of Investigation

5. (1) Where the Minister has ordered an investigation to be held, he shall cause a notice of investigation in the form set out in Schedule I to be served on the owner, master or officers of any ship involved in the shipping casualty or matter that is to be investigated and on any other person who, in the Minister's opinion, is to be made a party to the investigation.

(2) A notice of investigation shall set out the time and place appointed for holding the investigation and shall have attached thereto

(a) where applicable, a statement of particulars of the case setting out the date, place and nature of the shipping casualty or matter into which the investigation has been ordered; and

(b) a statement of the questions or issues based on the information then available upon which the Minister wishes to obtain the decision of the court concerning, if applicable,

(i) the cause of the shipping casualty or matter, and

(ii) the conduct of the persons connected with the shipping casualty or matter.

Parties

6. (1) The Minister and any person on whom a notice of investigation is served shall be a party to the investigation.

(2) Subject to subsection (3), the court may, either on its own motion or an application of any party, on such terms as it thinks fit, order a person to be added as a party to an investigation at any time.

(3) Any person may apply to the court to be added as a party to an investigation and, upon satisfying the court that his conduct is likely to come into question and his appearance is necessary for the protection of his interests, the court may add him as a party on such terms as the court thinks fit.

(4) No investigation shall fail by reason of the misjoinder or non-joinder of any person as a party, but the court may hear and determine the questions and issues so far as they affect the persons who are parties to the investigation.

Qualifications of Assessors

7. (1) Subject to subsection (2), a person may be appointed an assessor if he

(a) holds a certificate of competency as a master, granted in Canada or recognized by the Minister as being equivalent to a certificate granted in Canada;

(b) holds a certificate of competency as a first class engineer, granted in Canada or recognized by the Minister as being equivalent to a certificate granted in Canada; or

(2) No person appointed under paragraphs (1)(a) or (b) shall be selected to assist the court holding an investigation involving the certificate of a master, mate or engineer or the licence of a pilot unless that person has served in a class of a certificate equal to or higher than the class of the certificate of the master, mate, pilot or engineer involved.

Appointments of Assessors

8. Where an investigation involves or may involve the cancellation or suspension of the certificate or licence of

(a) a master, mate or pilot, but not an engineer, the Minister shall appoint at least one assessor from among persons described in paragraph 7(1)(a);

(b) an engineer, but not a master, mate or pilot, the Minister shall appoint at least one assessor from among persons described in paragraph 7(1)(b); or

(c) a master, mate or pilot and engineer, the Minister shall appoint at least one assessor from among persons described in paragraph 7(1)(a) and at least one assessor from among persons described in paragraph 7(1)(b).

Replacement of Assessors

9. (1) Where an assessor becomes incapacitated or unable to act at any time during the course of an investigation, he may be replaced.

(2) The proceedings of an investigation shall continue notwithstanding the replacement of an assessor pursuant to subsection (1).

Amendments to Questions and Issues

10. The Minister or a person authorized by him may, at any time prior to or during an investigation, by notice,

(a) amend the statement of particulars of the case referred to in paragraph 5(2)(a); or

(b) amend, add to or delete from the statement any questions or issues referred to in paragraph 5(2)(b).

Investigation Procedure

11. (1) The notice of investigation shall be read in open court at the commencement of an investigation and the court shall proceed first with the examination of witnesses

(a) called as a result of an application by the Minister; or

(b) called on the court's own motion.

(2) Commission counsel may examine, cross-examine or re-examine any witness and, with leave of the court, any witness called pursuant to subsection (1).

Presence of Parties

12. At the time and place appointed for holding an investigation, the court may proceed with the investigation, whether or not the parties to the investigation or their counsel are present.

Attendance of Witnesses

13. Where the court requires the attendance of a witness, either of its own motion or as a result of an application by any party, the notice to be served on the witness shall be in the form set out in Schedule II.

Production of Documents

14. (1) Where the court requires the production of documents by any person, the notice to be served on that person shall be in the form set out in Schedule III.

(2) Subject to subsections (3) and (4), the court may at any time, on the application of any party, order the production by any person, whether a party to the investigation or not, of all such documents and things as are shown by the applicant to be relevant to the purposes of the investigation and in the possession of that person.

(3) The court shall not make an order referred to in subsection (2) unless the applicant has first served a notice of his application on the person to whom such order is to be directed and on the other parties to the investigation in sufficient time to allow that person and the parties to make representations to the court concerning the application.

(4) An order referred to in subsection (1) or (2) may be made on such terms as the court thinks fit.

(5) Where an order referred to in subsection (1) or (2) is not complied with, the court may, in addition to any other remedy, admit such other evidence as is available, whether hearsay or not, as evidence of the documents and things specified in the order.

Service of Documents

15. Any notice, summons or other document issued under these Rules may be served personally at the address of the person to be served or by such other method of service as the court may direct.

Evidence

16. (1) Each party to an investigation may, in such order as the court directs, adduce evidence or examine, cross-examine or re-examine a witness, as the case may be.

(2) The court may admit as evidence affidavits, statutory declarations, rogatory commissions and other evidence made or taken under the laws of Canada or any other country that may be applicable in any case in which the court considers it fit and proper to have such evidence presented.

(3) The court shall determine the admissibility of any evidence tendered at such time as it thinks fit.

17. Questions asked and documents and exhibits tendered as evidence in the course of the examination of witnesses called on behalf of the court shall not be open to objection merely on the ground that they do or may raise questions or issues that are not contained in, or may vary from, the particulars of the case or the questions or issues set out in the statements attached to the notice of investigation pursuant to subsection 5(2) or any amendments thereto referred to in section 10.

Admissions

18. (1) Any party to an investigation may, either before or during the investigation, serve any other party thereto with a notice requesting that other party to admit the genuineness of any document relating to the purposes of the investigation.

(2) A party served with a notice referred to in subsection (1) may serve on the party who served the notice referred to in subsection (1) an affidavit

(a) denying that the document or documents referred to in the notice are genuine, or

(b) setting out the grounds for his refusal to admit the genuineness of the document referred to in subsection (1)

within 15 days of service of the notice or within such other period of time as the court may fix on application in writing from the party served with the notice.

(3) If the affidavit referred to in subsection (2) is not served within the time specified in that subsection, the party referred to in subsection (2) shall be considered by the court to have admitted the genuineness of the document or documents.

19. (1) Any party may by notice, either prior to or during an investigation, call upon any other party to admit, for the purposes of the investigation only, any fact or facts specified in the notice.

(2) If a party on whom a notice was served under subsection (1) does not admit a fact specified in the notice, the cost of proving the fact may be allowed by the court to the party who proved it, whatever the result of the investigation, unless the failure to admit the fact was based, in the opinion of the court, on reasonable grounds.

20. Copies of the notices referred to in subsections 18(1) and 19(1) and the affidavit referred to in subsection 18(2), if any, shall be filed with the court.

Questions, Charges and Penalties

21. (1) When the examination, cross-examination and re-examination of the witnesses referred to in subsection 11(1) have been concluded, commission counsel shall read the Minister's questions in their final form.

(2) Where the Minister requests the suspension or cancellation of the licence or certificate of a party to an investigation or the imposition of a penalty on the party, commission counsel shall, after complying with subsection (1),

(a) state the request of the Minister;

(b) set out the grounds for making the request; and

(3) Every party to an investigation who holds a licence or certificate the suspension or cancellation of which is requested by the Minister and every party on whom the imposition of a penalty is requested by the Minister shall be given an opportunity to adduce any evidence respecting that request that has not already been adduced during the investigation.

Argument

22. (1) When all the evidence has been adduced during an investigation, each party present or his counsel may address the court viva voce in such order as the court directs and commission counsel shall have the right to address the court last.

(2) The court may direct that written argument be submitted by the parties to an investigation in respect of the questions or issues to be determined by the court.

Adjournments

23. (1) The court may adjourn an investigation from time to time and from place to place.

(2) Where an adjournment is requested by any party to an investigation, the court may, as a condition of granting the adjournment, impose such terms as to payment of costs or otherwise as it thinks fit.

Report

24. In a report to the Minister made pursuant to subsection 558(6) of the Act, the court may make such recommendations as it thinks fit.

Copies of the Report

25. The Minister shall, on application by any party to an investigation, make available to him a copy of any report referred to in section 24.

SCHEDULE I

(s.5)

NOTICE OF INVESTIGATION

PURSUANT TO SECTION 5 OF THE SHIPPING INQUIRIES AND

INVESTIGATIONS RULES

I HEREBY GIVE YOU NOTICE THAT THE MINISTER OF TRANSPORT OF CANADA HAS ORDERED A FORMAL INVESTIGATION INTO THE CIRCUMSTANCES ATTENDING

TO BE HELD AT

COMMENCING THE DAY OF 19
j BEFORE j AFTER
AT O'CLOCK NOON NOON

ATTACHED HERETO IS A STATEMENT OF PARTICULARS OF THE CASE UPON WHICH THE SAID INVESTIGATION HAS BEEN ORDERED.

I FURTHER GIVE NOTICE THAT, ON THE INFORMATION PRESENTLY AVAILABLE TO THE DEPARTMENT OF TRANSPORT, THE STATEMENT OF THE QUESTIONS OR ISSUES ANNEXED HERETO IS THAT UPON WHICH IT IS PROPOSED TO OBTAIN THE DECISION OR RECOMMENDATION OF THE COURT.

DATED AT THIS DAY OF 19

MINISTER

82-0614(9-85)

SCHEDULE II
(s.13)

SUBPOENA

PURSUANT TO SECTION 556 OF THE CANADA SHIPPING ACT

ELIZABETH THE SECOND, BY THE GRACE OF GOD, OF THE UNITED KINGDOM, CANADA AND HER OTHER REALMS AND TERRITORIES, QUEEN, HEAD OF THE COMMONWEALTH, DEFENDER OF THE FAITH.

GREETING

WE COMMAND YOU TO PERSONALLY APPEAR BEFORE THE COURT.

ON THE DAY OF
j BEFORE j AFTER
AT O'CLOCK NOON NOON

TO TESTIFY THE TRUTH ACCORDING TO YOUR KNOWLEDGE IN THE INVESTIGATION BEING HELD BY THIS COURT IN THE MATTER OF

AND HEREOF FAIL NOT AT YOUR PERIL.

GIVEN UNDER MY HAND AT THIS DAY OF 19

COMMISSIONER

82-0615(9-85)

SCHEDULE III

(s.14)

SUBPOENA DUCES TECUM

PURSUANT TO SECTION 556 OF THE CANADA SHIPPING ACT

ELIZABETH THE SECOND, BY THE GRACE OF GOD, OF THE UNITED KINGDOM, CANADA AND HER OTHER REALMS AND TERRITORIES, QUEEN, HEAD OF THE COMMONWEALTH, DEFENDER OF THE FAITH.

GREETING

WE COMMAND YOU TO PERSONALLY APPEAR BEFORE THE COURT.

ON THE DAY OF
j BEFORE j AFTER
AT O'CLOCK NOON NOON

AND THAT YOU BRING WITH YOU AND PRODUCE BEFORE THE SAID COURT THE FOLLOWING DOCUMENTS VIZ:

AND SHOW ALL AND SINGULAR THOSE THINGS WHICH YOU KNOW OR WHICH THE SAID PAPER WRITING DOTH IMPORT OF, IN OR CONCERNING THE PRESENT INVESTIGATION NOW DEPENDING ON THE SAID COURT AND HEREOF FAIL NOT AT YOUR PERIL.

GIVEN UNDER MY HAND AT

THIS DAY OF 19

82-0616(9-85) COMMISSIONER