Darnel, Re, (1974) 5 N.R. 185 (FCA)

• Judge: Thurlow, Pratte and Urie, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 17, 1974
• Jurisdiction: Canada (Federal)
• Citations: (1974), 5 N.R. 185 (FCA)

Darnel, Re (1974), 5 N.R. 185 (FCA)

MLB headnote and full text

Re Darnel

Indexed As: Darnel, Re

Federal Court of Appeal

Thurlow, Pratte and Urie, JJ.

October 17, 1974.

Summary:

This case arose out of a suspension of a pilot by the Pacific Pilotage Authority following a collision between two ships. The pilot was suspended by the chairman of the Authority for 15 days pursuant to s. 17(1) of the Pilotage Act. In addition, the Pacific Pilotage Authority purported to suspend the pilot for an additional 15 days pursuant to s. 17(4) of the Pilotage Act. Section 17 of the Pilotage Act required that where a pilot is to be suspended for more than the initial 15 days, the pilot must be given written notice setting out the action that the Pacific Pilotage Authority proposes to take and the reasons therefor - see s. 17(4) set out in footnote 1. The Pacific Pilotage Authority gave the pilot notice pursuant to s. 17(4) which stated "that the Authority had reason to believe that you were negligent in your duty in permitting the ship SUN DIAMOND to collide with the ship ERAWAN . . .".

The Federal Court of Appeal held that the initial suspension made by the chairman of the Pacific Pilotage Authority pursuant to s. 17(1) of the Pilotage Act was not a judicial or quasijudicial decision subject to review by the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act. However, the Federal Court of Appeal reviewed and set aside the additional suspension because the notice to the pilot pursuant to s. 17(4) of the Pilotage Act was insufficient. The Federal Court of Appeal stated that the notice should have stated the conduct of the pilot which constituted neglect to duty and also should have stated the action that the Authority proposed to take.

Section 28(1) of the Federal Court Act states: "28.(1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal (a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (b) erred in law in making its decision or other, whether or not the error appears on the face of the record; or (c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it."

Labour Law - Topic 9305

Public service labour relations - Judicial review of the suspension of a pilot pursuant to the Pilotage Act - The Federal Court Act, s. 28 - The Federal Court of Appeal referred to s. 17(1) of the Pilotage Act which conferred a power to suspend a pilot for negligence and held that such a power was not a judicial or quasijudicial power and, accordingly, such a suspension was not subject to judicial review by the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act.

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Sufficiency of notice - A pilot was given notice of suspension by the Pacific Pilotage Authority pursuant to s. 17(4) of the Pilotage Act - The notice stated "you were negligent in your duty" in permitting a collision - The Federal Court of Appeal stated that the notice was insufficient in that it should have stated the conduct of the pilot which constituted neglect of duty and also should have stated the action that the authority proposed to take - The Federal Court of Appeal set aside a suspension order made following the defective notice.

Words and Phrases

Judicial or quasi-judicial basis - The Federal Court of Appeal discussed the meaning of the words "judicial or quasi-judicial basis" as found in s. 28(1) of the Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10.

Statutes Noticed:

Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, sect. 28(1) [see above].

Pilotage Act, S.C. 1970-71-72, c. 52, sect. 17, sect. 18 [footnote 1].

Counsel:

D. Brander Smith, for the applicant;

W. O'Malley Forbes, for the respondent.

This appeal was heard by the Federal Court of Appeal at Vancouver, British Columbia on October 8, 9, 10 and 11, 1974. Judgment was delivered by the Federal Court of Appeal on October 17, 1974 and the following opinions were filed:

THURLOW, J. - see paragraphs 1 to 10.

PRATTE, J. - see paragraphs 11 to 17.

URIE, J. - see paragraphs 17 to 27.