2007 BCSC 1434 British Columbia Ferry Services Inc. v. Canadian Transportation Accident Investigation and Safety Board

Before: The Honourable Mr. Justice Hinkson

Reasons for Judgment

Counsel for the Petitioner	D.C. Harris, Q.C. Brent Olthuis
Counsel for the Respondent	Avon Mersey Mark Fancourt-Smith Michele Kim
Date and Place of Trial/Hearing:	September 11 and 13, 2007
	Vancouver, B.C.

[1] On March 22, 2006, the petitioner’s vessel, “the M. V. Queen of the North”, sank near Gil Island, British Columbia.

[2] The vessel was equipped with an Electronic Chart System (“ECS”) purchased by the petitioner from Transas U.S.A. Inc. (“Transas”). The ECS has amongst its features an Automatic Identification System that enables the tracking of vessels and connects to global positioning systems. Data from the ECS hard drive enables the reconstruction of the movement of the vessel.

[3] On June 15, 2006, the respondent retrieved the ECS hard drive from the sunken vessel using a submersible device that it acquired for that purpose.

[4] Transas was then retained by the respondent to interpret the data on the hard drive, and did so.

[5] The interpretation was provided by the respondent to the petitioner pursuant to an agreement dated May 25, 2007 which stated that:

The ECS data will be kept in confidence by BC Ferries and is to be used only for the purposes of responding to the draft report [of the respondent] subject to the parties’ agreement to permitted uses prior to the release of the TSB’s final report or order of the court.

[6] The respondent has not agreed to any additional use. The petitioner in this case seeks various relief, but the only issue on this application is the petitioner’s request for an order permitting it to use the interpretation of the data in a report that it wishes to release as an addendum to its prior report of March 26, 2007.

Issues

[7] The respondent says that the Federal Court of Canada is the only court that has jurisdiction to make orders with respect to its private law duties and that this court thus lacks jurisdiction to make the requested order.

[8] In the event that this court has jurisdiction to make the requested order, should it do so?

Background

[9] In April 2003, the petitioner was transformed from a Crown Corporation into an independent, commercial organization under the Business Corporations Act, S.B.C 2002, c. 57. It is regulated by a 60 year binding agreement with the Province of British Columbia known as the Coastal Ferries Services Contract.

[10] B.C. Ferries is governed by the B.C. Ferry Authority and overseen by the B.C. Ferry Commission, an independent regulator appointed to monitor adherence to the Contract.

[11] The Contract mandates an annual customer satisfaction tracking survey to measure and monitor customer needs and interests, including the overall safety of the operations.

[12] The petitioner says that it has a private law duty to inform the public about safety issues relating to the operation of its vessels.

[13] It is agreed that the hard drive is the property of the petitioner.

[14] Following the sinking of the Queen of the North, the petitioner undertook an investigation of the events that led to the sinking. The petitioner was handicapped in its investigation by the fact that certain of the involved officers refused to answer questions relating to the handling of the vessel on its voyage prior to the sinking.

[15] Despite the difficulties it encountered in its investigation, the petitioner published a Divisional Inquiry report dated March 26, 2007, concerning the events that occurred prior to the sinking.

[16] The respondent is established under the Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3 (“Act”) to conduct investigations into selected transportation occurrences in order to make findings as to their causes and contributing factors.

[17] Section 19 of its enabling legislation includes:

19(1) Powers of investigators

Where an investigator believes on reasonable grounds that there is, or may be, at or in any place, any thing relevant to the conduct of an investigation of a transportation occurrence, the investigator may, subject to subsection (2), enter and search that place for any such thing, and seize any such thing that is found in the course of that search.

19(2) Conditions for exercise of powers under subsection (1)

An investigator shall not exercise the powers referred to in subsection (1) in relation to a particular place without the consent of the person apparently in charge of that place unless

(a) those powers are so exercised in relation to that place under the authority of a warrant, or

(b) by reason of exigent circumstances, it would not be practical for the investigator to obtain a warrant.

…

19(5) Power to test things seized, etc.

Where any thing is seized by an investigator under subsection (1), the investigator

(a) may, subject to paragraph (b), cause such tests, including tests to destruction, to be conducted on the thing as are necessary for the purposes of the investigation in respect of which the thing was seized;

(b) shall, to the extent that it is practical and safe to do so and does not unreasonably impede the progress of the investigation,

(i) take all reasonable measures to invite the owner of the thing, and any person who appears on reasonable grounds to be entitled to it, to be present at any tests referred to in paragraph (a), and

(ii) allow persons referred to in subparagraph (i) to be present at those tests; and

(c) subject to the need to conduct such tests, shall cause the thing to be preserved pending its return in accordance with section 20.

…

19(7) Disruption to be minimized

In exercising the power conferred by subsection (6), an investigator shall have regard to the desirability of minimizing any resulting disruption to transportation services.

19(8) Offence in respect of exclusion order

No person shall knowingly enter an area in contravention of a prohibition or limitation of access pursuant to subsection (6).

19(9) Additional powers of investigators

An investigator who is investigating a transportation occurrence may

(a) where the investigator believes on reasonable grounds that a person is in possession of information relevant to that investigation,

(i) by notice in writing signed by the investigator, require the person to produce the information to the investigator or to attend before the investigator and give a statement referred to in section 30, under oath or solemn affirmation if required by the investigator, and

(ii) make such copies of or take such extracts from the information as the investigator deems necessary for the purposes of the investigation;

…

19(10) Persons to comply with requirements imposed under paragraph (9)(a), (c) or (d)

No person shall refuse or fail to produce information to an investigator, or to attend before an investigator and give a statement, in accordance with a requirement imposed under paragraph (9)(a), or to provide information in accordance with a requirement imposed under paragraph (9)(c) or to make the body of a deceased person or other human remains available for the performance of an autopsy or medical examination in accordance with a requirement imposed under paragraph (9)(d).

…

19(14) Idem

Nothing in this section shall be taken

(a) to imply that a thing seized pursuant to subsection (1) may not be an aircraft, a ship, an item of rolling stock or a pipeline, or any part thereof; or

(b) to authorize the exercise of a power by an investigator in circumstances where the exercise of that power would be inconsistent with section 18.

…

19(15.1) Failure to produce document, etc.

Where an investigator has required a person to do something under paragraph (9)(a), (b), (c) or (d) and the person has refused to do as required, the investigator may make an application to the Federal Court or a superior court of a province setting out the facts, and the court may inquire into the matter and, after giving the person an opportunity to comply with the requirement, take steps for the punishment of the person as if the person had been guilty of contempt of the court, or may make such other order as it finds appropriate.

19(16) Definitions

In this section,

"information" includes a record regardless of form and a copy of a record;

"place" includes

(a) an aircraft, a ship, rolling stock, any other vessel or vehicle and a pipeline, and

(b) any premises or any building or other structure erected on those premises.

[18] The respondent also undertook an investigation of the events that led to the sinking of the vessel, but did not encounter the same difficulties in obtaining information from the officers involved, given its statutory powers. It has yet to publish a report of its investigation to the public.

[19] From July 2006 until the agreement of May 25, 2007, the parties exchanged correspondence with respect to the return of the hard drive to the petitioner.

[20] The respondent has provided some information to the petitioner. The petitioner says that if the respondent had simply returned the original hard drive rather than providing a copy of the data from the hard drive in “readable form,” it could have performed its own plotting and analysis of the data.

[21] The petitioner says that the respondent has now completed its use of the seized system, and that it is entitled to the return of the system. In these circumstances, the petitioner argues that since it could have the information on the system interpreted if the hard drive were returned to it, the court should order that it can use the information provided by the respondent beyond the terms agreed to by the parties.

[22] The respondent says that it has provided more than the original hard drive, and that what it provided, pursuant to the agreement of May 25, 2007, is what the petitioner has used in the preparation of its proposed addendum report.

[23] Indeed, Master Mariner George A. Capacci, who is the petitioner’s Vice President, Fleet Operations, has deposed that the proposed addendum is based on a plotting and analysis performed entirely by the petitioner’s personnel, and comprised of data available from the copy of the ECS data provided pursuant to the agreement between the parties.

[24] Section 20 of the Act provides:

20(1) Return of seized property

Any thing seized pursuant to section 19, except recordings as defined in subsection 28(1), shall, unless

(a) the owner thereof or a person who appears on reasonable grounds to be entitled thereto consents otherwise in writing, or

(b) a court of competent jurisdiction orders otherwise, be returned to that owner or person, or to the person from whom it was seized, as soon as possible after it has served the purpose for which it was seized.

20(2) Application for return

A person from whom any thing was seized pursuant to section 19, except recordings as defined in subsection 28(1), or the owner or any other person who appears on reasonable grounds to be entitled thereto, may apply to a court of competent jurisdiction for an order that the seized thing be returned to the person making the application.

20(3) Order for return

Where, on an application under subsection (2), the court is satisfied that the seized thing has served the purpose for which it was seized or should, in the interests of justice, be returned to the applicant, the court may grant the application and order the seized thing to be returned to the applicant, subject to any terms or conditions that appear necessary or desirable to ensure that the thing is safeguarded and preserved for any purpose for which it may subsequently be required by the Board under this Act.

20(4) Exception

This section does not apply in respect of any thing seized and tested to destruction in accordance with subsection 19(5).

[25] The parties agree that this court has jurisdiction to make an order for the return of the system to the petitioner, if such an order is sought.

[26] Whether such an order would be made is uncertain, as s. 20(3) requires the applicant to satisfy an onus before such an order would be granted. I am not satisfied that the petitioner could necessarily satisfy such an onus, but as that application is not before me, I am not prepared to proceed on the basis that the petitioner could obtain an order for the return of the system at this time.

[27] Given the public importance of the matters it is empowered to investigate, the respondent is granted wide and unique powers. Under s. 30 of the Act, it is authorized to afford assurances of confidentiality and treat statements that it obtains as privileged subject only to a public interest ruling by a court or a coroner that the document or statement be disclosed.

[28] The reasons for this privileged treatment of information obtained by the respondent are discussed in Chernetz v. Eagle Copters Ltd., 2003 ABQB 331 at paras. 66 through 73.

[29] In performing its work, the respondent does not need to return any documents or items seized unless it chooses to do so, or a court of competent jurisdiction orders it to do so.

[30] The petitioner cannot avoid the obligation of persuading a court pursuant to s. 20 that it should have its hard drive returned at this time by entering into an agreement with the respondent to obtain information from the hard drive on specific terms and then ask the court to order that it can use the information as though it had obtained the return of its hard drive.

[31] To ignore the statutory requirements placed upon a party that wants the return of its property which has been seized by the respondent, could frustrate the work of the respondent.

[32] The Act provides a remedy for a party whose property has been seized by the respondent. The court should not provide the fruits of such a remedy in a manner other than that which has been specifically contemplated by the statute.

[33] I need not resolve the question of this court’s jurisdiction to make the order sought by the petitioner, as I am satisfied that even if this court has the necessary jurisdiction to make the order sought, that the order should not be made.

[34] The petitioner’s application is dismissed.

“Hinkson J.”

Citation:	*British Columbia Ferry Services Inc. v. Canadian Transportation Accident Investigation and Safety Board,*
	2007 BCSC 1434