Thibeault v. Canada (Attorney General), 2015 FC 162

• Judge: Martineau, J.
• Court: Federal Court (Canada)
• Case Date: January 27, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 162;(2015), 475 F.T.R. 173 (FC)

Thibeault v. Can. (A.G.) (2015), 475 F.T.R. 173 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] F.T.R. TBEd. FE.043

Sylvio Thibeault (demandeur) v. Le Procureur général du Canada (défendeur)

(T-884-13; 2015 CF 162; 2015 FC 162)

Indexed As: Thibeault v. Canada (Attorney General)

Federal Court

Martineau, J.

February 9, 2015.

Summary:

Marina del Chaudière inc. applied for approval of plans and site of three floating docks on the Chaudière River, and of mooring areas in the St. Lawrence River and the Chaudière River. Thibeault filed a notice of opposition with Navigable Waters Protection Program (NWPP), informing NWPP that he was the exclusive owner or occupant of the bed of the Chaudière River where Docks B and D and the mooring buoys in Zone 4 were to be installed, and that the Minister of Transport, Infrastructure and Communities lacked the authority to issue approvals concerning the Marina's floating docks because they were vessels rather than works under the Navigable Waters Protection Act. Thibeault also informed NWPP that he had anchored a ship (the floating structure) near the site planned by the Marina for Dock B, which he owned, for the purpose of performing work on his property. The Marina filed a complaint with NWPP to the effect that Thibeault was installing a dock across from the Lévis where the Marina was applying for Dock B. Following an inspection, the Minister ordered Thibeault to remove the "unauthorized work" (the floating structure) within 24 hours or the Minister would do so at Thibeault's expense. Thibeault applied for judicial review. A stay of the removal order was not requested. Thibeault did not comply with the order. The Minister had Thibeault's structure removed and, one week later, granted the Marina the approvals for each of the works listed in the application, including docks B and D and the Zone 4 mooring area (the legality of the approvals was reviewed by the court in a decision reported at [2015] F.T.R. TBEd. FE.046). This application raised the following issues: (1) whether the designation under the Navigable Waters Protection Act of Thibeault's floating structure as a "work" was unreasonable and, as a result, the removal order exceeded the Minister's authority; (2) alternatively, whether the Minister erred by not considering the application of the exceptional provisions in the Minor Works and Waters (Navigable Waters Protection Act) Order; and (3) whether there was a reasonable apprehension of bias.

The Federal Court determined the issues in the Minister's favour and dismissed the application.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - A marina applied for approval of plans and site of, inter alia, floating docks and mooring areas on the Chaudière River - Thibeault filed a notice of opposition with Navigable Waters Protection Program (NWPP), advising that, inter alia, he was the exclusive owner or occupant of the bed of the Chaudière River where two of the docks and mooring buoys were to be installed, and that he had anchored a ship (the floating structure) near the site of one of the docks for the purpose of performing work on his property - The marina filed a complaint with NWPP to the effect that Thibeault was installing a dock in the area - Following a visual inspection by an officer of the Minister of Transport, Infrastructure and Communities, the Minister ordered Thibeault to remove the "unauthorized work" (the floating structure) within 24 hours - A stay of the removal order was not requested - Thibeault did not comply with the order - The Minister had the structure removed and, one week later, granted the marina the approvals for each of the works listed in the application - Thibeault applied for judicial review, asserting that the Minister's officer was biased in the inspection process and in issuing the removal order - Thibeault asserted that the order was issued because the approval of the dock was about to be granted to the marina, and Thibeault's structure needed to be removed so that the marina could install the dock - He asserted that the officer prejudged the matter - Further, there was no urgency to order removal as the structure did not constitute an obstruction to navigation - The Federal Court held that a reasonable apprehension of bias had not been demonstrated - The removal order clearly indicated that the Minister could order removal if Thibeault did not comply - The time frame between the order's issuance and the solicitation to have the work removed was reasonable - There was no evidence of bad faith - Thibeault had not established that the order was issued to accommodate the marina or because it was what the marina wanted - The Navigable Waters Protection Act did not require the Minister to consider exclusive ownership or occupancy in considering unauthorized works - See paragraphs 32 to 36.

Administrative Law - Topic 2088.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Prejudgment of matter - [See Administrative Law - Topic 2088 ].

Shipping and Navigation - Topic 7710

Harbours, docks, piers, canals, locks and bridges - General - Works - A marina applied for approval of plans and site of, inter alia, floating docks and mooring areas on the Chaudière River - Thibeault filed a notice of opposition with Navigable Waters Protection Program (NWPP), advising that, inter alia, he was the exclusive owner or occupant of the bed of the Chaudière River where two of the docks and mooring buoys were to be installed, and that he had anchored a ship (the floating structure) near the site of one of the docks for the purpose of performing work on his property - The marina filed a complaint with NWPP to the effect that Thibeault was installing a dock in the area - Following a visual inspection, the Minister of Transport, Infrastructure and Communities ordered Thibeault to remove the "unauthorized work" (the floating structure) within 24 hours - Thibeault applied for judicial review, asserting that the designation under the Navigable Waters Protection Act of his floating structure as a "work" was unreasonable and, as a result, the removal order exceeded the Minister's authority - The Federal Court held that the Minister's designation was reasonable and the Minister had authority to issue the order - The issue was not whether the structure could be called a ship when it was moved, but whether a floating platform that was anchored and moored could be designated as a work - The "unauthorized work" designation was consistent with the evidence and the Act's purpose, which was to protect the public right to navigation - The Act's definition of "work" was not exhaustive and there was no clear indication that a ship, boat or craft was excluded from the definition - Even if the Minister had deemed the structure to be a vessel, the Minister would have been able to issue a removal order on the basis that it constituted "hazardous obstruction" to navigation - See paragraphs 12 to 26.

Shipping and Navigation - Topic 7710

Harbours, docks, piers, canals, locks and bridges - General - Works - A marina applied for approval of plans and site of, inter alia, floating docks and mooring areas on the Chaudière River - Thibeault filed a notice of opposition with Navigable Waters Protection Program (NWPP), advising that, inter alia, he was the exclusive owner or occupant of the bed of the Chaudière River where two of the docks and mooring buoys were to be installed, and that he had anchored a ship (the floating structure) near the site of one of the docks for the purpose of performing work on his property - The marina filed a complaint with NWPP to the effect that Thibeault was installing a dock in the area - Following a visual inspection, the Minister of Transport, Infrastructure and Communities ordered Thibeault to remove the "unauthorized work" (the floating structure) within 24 hours - Thibeault applied for judicial review, asserting, in the alternative, that the Minister of Transport, Infrastructure and Communities erred by not considering the application of the exceptional provisions for docks in the Minor Works and Waters (Navigable Waters Protection Act) Order (the Order), which did not require Ministerial approval - The Federal Court rejected the assertion - Thibeault's formal notice characterized the floating structure as a "ship" not a "dock" - Imposing on the Minister an analysis of the Order would amount to imposing an obligation to consider every regulation or order made under the Navigable Waters Protection Act before making a decision, even if those regulations were clearly inapplicable, and to indicate in his decision why each of those regulations was not applied - That would make no practical sense and had no place in the current context - Further, at first glance, Thibeault's floating structure was neither a "wharf", a "jetty" nor a "pier" in the usual sense of those terms which appeared in the Order's definition of "dock" because the work consisted of wood planks level with the water, and nothing in the record indicated that it was used to moor ships or to load or unload cargo or passengers - See paragraphs 27 to 31.

Waters - Topic 4703

Navigable waters - General - Works - [See both Shipping and Navigation - Topic 7710 ].

Waters - Topic 7690

Regulation - Remedies - Removal of unauthorized works - [See Administrative Law - Topic 2088 and first Shipping and Navigation - Topic 7710 ].

Words and Phrases

Dock - The Federal Court considered the meaning of this word as defined in s. 3 of the Minor Works and Waters (Navigable Waters Protection Act) Order, 2009 Can. Gaz. 1, 1403 - See paragraph 31.

Words and Phrases

Work - The Federal Court considered the meaning of this word as defined in s. 2 of the Navigable Waters Protection Act, R.S.C. 1985, c. N-22 - See paragraphs 12 to 26.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 11].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 11].

3897121 Canada inc. v. Marina de la Chaudière inc., 2012 FC 889, refd to. [para. 20].

National Harbours Board v. Saint John Shipbuilding and Dry Dock Co. et al. (1981), 43 N.R. 15; 126 D.L.R.(3d) 353 (F.C.A.), refd to. [para. 21].

Seafarers' International Union of Canada v. Crosbie Offshore Services Ltd., [1982] 2 F.C. 855 (F.C.A.), refd to. [para. 21].

Salt Spring Island Local Trust Committee v. B & B Ganges Marina Ltd. et al. (2008), 264 B.C.A.C. 87; 445 W.A.C. 87; 2008 BCCA 544, refd to. [para. 22].

Thomas v. Todorovic, 2013 QCCS 2807, refd to. [para. 22].

Sauvageau v. The King, [1950] S.C.R. 664, refd to. [para. 23].

Chalets St-Adolphe inc. v. St-Aldophe d'Howard (Municipalité de), 2011 QCCA 1491, refd to. [para. 24].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 24].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 36].

Statutes Noticed:

Minor Works and Waters (Navigable Waters Protection Act) Order, 2009 Can. Gaz. 1, 1403, sect. 3 [para. 29].

Navigable Waters Protection Act, R.S.C. 1985, c. N-22, sect. 2 [para. 14].

Counsel:

Isabelle Pillet, for the applicant;

Mariève Sirois-Vaillancourt, for the respondent.

Solicitors of Record:

De Man, Pilotte, Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard at Montreal, Quebec, on January 27, 2015, by Martineau, J., of the Federal Court, who delivered the following judgment and reasons on February 9, 2015.