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Vol. 141, No. 13 — June 27, 2007
Registration
CANADA SHIPPING ACT, 2001 Vessel Detention Orders Review Regulations P.C. 2007-925 June 7, 2007 Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, Infrastructure and Communities, pursuant to paragraph 244(c) of the Canada Shipping Act, 2001 (see footnote a), hereby makes the annexed Vessel Detention Orders Review Regulations. VESSEL DETENTION ORDERS REVIEW REGULATIONS INTERPRETATION 1. The following definitions apply in these Regulations. "Act" means the Canada Shipping Act, 2001. (Loi) "Board" means the Marine Technical Review Board established under section 26 of the Act. (Bureau) REVIEW 2. (1) The authorized representative of a vessel that is detained under section 222 of the Act may, within 30 days after the day on which notice of the detention order was served, apply to the Board's National Vice-Chair for a review of the order. (2) The National Vice-Chair shall assign the review to a Vice-Chair of the Board. (3) The Vice-Chair may confirm, rescind or vary the detention order and shall notify the authorized representative of the Vice-Chair's decision. RECONSIDERATION 3. (1) Within 30 days after the day on which the authorized representative receives notification of the decision made under subsection 2(3), the authorized representative may apply to the Board's Chair for a reconsideration of the decision. (2) The Chair may confirm, rescind or vary the decision and shall notify the authorized representative of the Chair's decision. COMING INTO FORCE 4. These Regulations come into force on the day on which section 2 of the Canada Shipping Act, 2001, chapter 26 of the Statutes of Canada, 2001, comes into force. REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Description The Canada Shipping Act, 2001 (CSA 2001) received Royal Assent on November 1, 2001. Upon entry into force, it will replace the Canada Shipping Act (CSA), one of the oldest pieces of Canadian legislation, and provide a streamlined and modern framework for the regulation of marine transportation in Canada, for safety, environmental and administrative purposes. The detention of vessels is an enforcement tool used by steamship inspectors to safeguard a vessel in the most serious circumstances, that is, when the safety of those on board the vessel is at risk or there is a possibility of serious damage to the environment. For example, if a marine safety inspector believes on reasonable grounds that a vessel is not seaworthy, the inspector may make a detention order in respect of that vessel under section 222 of the CSA 2001. Section 222 also requires a marine safety inspector to make a mandatory detention order where the vessel is unsafe, where it is unfit to carry passengers or members of the crew, or where its machinery or equipment is defective in any way so as to expose persons on board to serious danger. The CSA 2001 moves the mechanism of review of detention orders from the CSA to the Regulations to provide flexibility, transparency and a more objective process. Currently, the mechanism to settle disputes between a steamship inspector and a member of the public, including those disputes over detention orders, is set out under section 307 of the CSA. Under the CSA 2001, paragraph 244(c) provides for the making of regulations "respecting the detention of vessels, including the review of detention orders". As a result of the differences between the CSA and the CSA 2001, the new Vessel Detention Orders Review Regulations (the Regulations) reproduce the procedures for the review of vessel detention orders that exist under section 307 of the CSA with only slight modifications. The new procedure is as follows: 1. A vessel's authorized representative, as defined in section 2 of the CSA 2001, may apply to the National Vice-Chair of the Marine Technical Review Board (the Board) for a review of a detention order made under section 222 of the CSA 2001 within 30 days after the service of the notice of the detention order. 2. The National Vice-Chair assigns the review of the detention order to a Vice-Chair of the Board. 3. The Vice-Chair makes a decision to confirm, vary or rescind the detention order and notifies the authorized representative of the decision. 4. The authorized representative may apply to the Chair of the Board for a reconsideration of the decision of the Vice-Chair within 30 days after notification of the decision. 5. The Chair rescinds, varies or confirms the decision of the Vice-Chair and notifies the authorized representative of the decision. The main changes in procedures relate to decision-making. Under the new procedure, the review would be limited to a single decision-maker (a Vice-Chair of the Board) and a reconsideration of this decision would be made, on request, by the Chair instead of the Minister. These changes were necessary for the two reasons explained in the paragraphs below. Firstly, the decision-making process was modified to ensure that the review of an inspector's decision to detain a vessel was not referred to his nominal superior (the Chairman of the Board of Steamship Inspection has technical authority over all steamship inspectors) nor referred to a board of which the inspector is a member (all steamship inspectors are members of the Board). Secondly, detention orders are made as a result of the judgment of a marine safety inspector that a serious situation exists. Such a decision involves the exercise of technical expertise in marine matters, particularly whether equipment or the vessel itself are defective. For this reason, it is best if a reconsideration or review of such a decision is undertaken by persons with the relevant expertise. Subsections 26(3) and (4) of the CSA 2001 require the Chair and Vice-Chair to have such expertise in marine matters. In this context, the Minister would not be the best person to reconsider whether the detention of a vessel is appropriate. Although the Board is an arms-length organization, it is under the responsibility of the Minister of Transport, Infrastructure and Communities. Having the Minister responsible for the final decision on a vessel detention order could create an apparent conflict of interest. Alternatives Without the Regulations, the only legal remedy under the CSA 2001 for an aggrieved party would be an application for judicial review to the Federal Court under sections 18 and 18.1 of the Federal Courts Act. The review process created by the Regulations spares the applicant the time and expense of a lengthy proceeding in Federal Court. Therefore, there is no viable alternative to the making of the Regulations. Benefits and costs Benefits The Regulations will benefit the maritime community, as well as the Government, by providing an expedient method of resolving disputes over vessel detention orders. Placing the review and reconsideration process within the Board removes any apparent conflict of interest and allows decisions to be revisited by persons with the appropriate specialized knowledge. Costs The Regulations are cost neutral as they establish, with some modifications, a statutory review procedure that currently exists under the CSA. As such, there are no additional costs resulting from the Regulations. From January 2005 to December 2006, there were seventy-eight detentions, of which eight were appealed to the Chairman and half of those were overturned or reversed. No decision of the Board was appealed to the Minister. No applications were filed with the Federal Court in 2006 regarding vessel detention orders. Environmental impacts A preliminary scan of environmental impacts has been undertaken in accordance with the criteria of Transport Canada's Strategic Environmental Assessment Policy Statement — March 2001. The preliminary scan has led to the conclusion that a detailed analysis is not necessary. Further assessments or studies regarding environmental effects of this initiative are not likely to yield a different determination. The Regulations will not have significant environmental impacts, either positive or negative, as the Regulations simply implement an administrative scheme that has no environmental implications. Privacy impacts The Regulations do not raise privacy issues. The review of a vessel detention order can only occur as a result of a decision by a marine safety inspector that one or more of the grounds specified in section 222 of the CSA 2001 exist with respect to the vessel. Notice of a detention order must be served on the master of the vessel. This process has no impact on the privacy of individuals. Similarly, the review of a detention order pursuant to the Regulations has no impact on the privacy of individuals. Consultation Marine industry stakeholders have been consulted with regard to the Regulations. Presentations on this regulatory initiative have been given at regional and national meetings of the Canadian Marine Advisory Council in 2005 and 2006. No adverse comments have been received. This is understandable given the simplicity, and desirability for stakeholders, of the Regulations. The Regulations were published in the Canada Gazette, Part I, on April 28, 2007, followed by a 15-day comment period. As no comments were received from stakeholders, the Regulations remain the same as those published in the Canada Gazette, Part I. Compliance and enforcement The Regulations are administrative in nature and are not themselves subject to being enforced. Contact
Frank Ritchie
S.C. 2001, c. 26 |
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