GLOBAL MARINE SYSTEMS LTD. Applicant v. MINISTER OF TRANSPORT, 2020 FC 414

Date: 20200325 Docket: T-1188-19 Citation: 2020 FC 414 Ottawa, Ontario, March 25, 2020 PRESENT: The Honourable Madam Justice Strickland BETWEEN: GLOBAL MARINE SYSTEMS LTD. Applicant And MINISTER OF TRANSPORT Respondent JUDGMENT AND REASONS [ 1 ] The Applicant, Global Marine Systems Ltd. ( " “Global Marine” " ), seeks to judicially review an email dated June 20, 2019, from Emilie Gelinas, Director of the Seaway and Domestic Shipping Policy division within the Marine Policy Directorate of Transport Canada.

The email informed Global Marine that the standby activities of the vessel " “Cable Innovator” " were considered by Transport Canada to be marine activities of a commercial nature as defined in s 2(1)(

f) of the Coasting Trade Act , SC 1992, c 31 (or the " “Act” " ). This is an application for judicial review of that finding, brought pursuant to s 18.1 of the Federal Courts Act , RSC 1985, c F-7 . Background [ 2 ] The " “Cable Innovator” " is a British-flagged vessel, operated by Global Marine. It is a specialized cable ship utilized for the installation, maintenance and repair of subsea fibre optic cables.

Global Marine provides these services pursuant to the North American Submarine Cable Maintenance Service Contract ( " “NAZ Contract” " ) dated December 2, 2011 and entered into with various North American Zone Members, who each have interests in submarine cables within the North American Zone ( " “NAZ” " ).

The NAZ covers a prescribed subsea area running along the west coast of North America from Mexico to Alaska and extending westward to the 167th meridian, near Hawaii. [ 3 ] The " “Cable Innovator” " , and its predecessor vessels, have been based in Victoria Harbour in Victoria, British Columbia, for many years. Global Marine asserts that this has been the case for the past 30 to 40 years. Pursuant to the NAZ Contract, the " “Cable Innovator” " must at all times be ready, manned and equipped to respond within 24 hours to notification from a NAZ Member of the need for a cable repair.

Global Marine is paid a repair and maintenance service rate when mobilized to perform such services. It is also paid an annual fee in return for which it makes the " “Cable Innovator” " , its crew and equipment, available to perform the work under the NAZ Contract, which includes the costs of the " “Cable Innovator” " when on standby.

Global Marine reports that the vast majority of the work performed by the " “Global Innovator” " is outside Canada, and since 2012, less than 3% of the vessel’s operating days were on projects in Canadian waters. [ 4 ] On September 21, 2016, Global Marine submitted an Application for Vessel Temporary Admission to the Coasting Trade of Canada ( " “C47 application” " ) to the Canada Border Services Agency ( " “CBSA” " ) and the Canadian Transportation Agency ( " “CTA” " ).

The CTA is required to determine if a suitable Canadian ship or non-duty paid ship is available to provide the proposed service or perform the activity described in a C47 application. On October 17, 2016, CBSA advised that the CTA had determined that there was no suitable Canadian ship available to provide the service or perform the activity described in the submitted C47 application and that Global Marine was authorized to temporarily import the " “Cable Innovator” " into Canada ( " “C47 Temporary Admission” " ).

However, that a coasting trade licence ( " “C48 licence” " or " “coasting trade licence” " ) must be obtained before the vessel could commence its operations. [ 5 ] " Global " Marine asserts that its prior practice, since at least 2008, was to maintain an annual C47 temporary admission and to seek a C48 licence only when needed to undertake subsea cable maintenance or repairs in Canadian waters.

This practice was meant to shorten the time that would be required to obtain a C48 licence. [ 6 ] However, on May 2, 2017, Global Marine received an email from Transport Canada advising that the " “Cable Innovator” " was required to hold a C48 licence while on standby in Victoria Harbour. Various communications were exchanged and meetings were held between July 2017 and March 2019 during which Global Marine put forward information in support of its view that being on standby is not a marine activity of a commercial nature, and therefore, that a C48 licence is not required while the vessel is on standby.

This included a meeting with the Assistant Deputy Minister of Transport Canada on February 27, 2019. [ 7 ] By email of June 20, 2019, Ms. Gelinas advised Global Marine that Transport Canada continued to be of the view that the standby activities of the vessel " “Cable Innovator” " are marine activities of a commercial nature under s 2(1)(

f) of the Coasting Trade Act , and that the " “Cable Innovator” " should, accordingly, obtain a C48 licence for cable repair and standby activities. [ 8 ] On July 22, 2019, Global Marine filed a Notice of Application seeking judicial review of the June 20, 2019 email as a delegated decision of the Minister of Transport ( " “Minister” " ). Legislative Scheme

[ 9 ] It is not in dispute that obtaining a C48 licence is a two-part process. First, a C47 application, in prescribed form, must be submitted to the CBSA and CTA. The CTA determines if a suitable Canadian ship or non-duty paid ship is available to carry out the proposed service or perform the activity described in the application ( Coasting Trade Act , ss 4(1)(a), 8(1)). If not, the CTA will approve the proposed temporary importation of the foreign vessel.

However, regardless of the temporary importation being approved, the vessel may not engage in the proposed work until a valid coasting trade licence is issued by the Minister. At this second stage, the vessel must be inspected by Transport Canada’s Marine Safety and Security vessel inspection branch to ensure that it meets all applicable safety and pollution requirements ( Coasting Trade Act , s 4(1)(

d) and (e)). Further, the duties and taxes in respect of the temporary importation must be paid ( Coasting Trade Act , s 4(1)(c)). [ 10 ] According to the affidavit of Marc-Yves Bertin, Director General of the Marine Policy Directorate at Transport Canada, sworn on September 19, 2019, and submitted in support of the Minister’s response to this application for judicial review ( " “Bertin Affidavit” " ), rates on imported goods are prescribed by the Customs Tariff , SC 1997, c 36 . Imported marine vessels are generally subject to a tariff of 25%.

However, a vessel imported into Canada on a temporary basis under a coasting trade licence will have that duty reduced to the customs duty on 1/120 of the value of the vessel for each month or part of a month during which it remains in Canada per the Vessel Duties Reduction or Removal Regulations , SOR/90-304 , ss 3(1) and 4.

Once the applicant has satisfactorily established that these requirements have been met, CBSA, on behalf of the Minister of Public Safety and Emergency Preparedness, will issue a coasting trade licence, which is valid for up to one year. [ 11 ] What is in dispute in this matter is whether the " “Cable Innovator” " is engaged in " “marine activity of a commercial nature” " , pursuant to s 2(1)(

f) of the Coasting Trade Act , when it is on standby in Victoria Harbour, and therefore, whether it requires a coasting trade licence while on standby. Coasting Trade Act Coasting Trade Act , SC 1992, c 31 2

(1) In this Act, … Coasting trade means (

a) the carriage of goods by ship, or by ship and any other mode of transport, from one place in Canada or above the continental shelf of Canada to any other place in Canada or above the continental shelf of Canada, either directly or by way of a place outside Canada, but, with respect to waters above the continental shelf of Canada, includes the carriage of goods only in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada, (

b) subject to paragraph (c), the carriage of passengers by ship from any place in Canada situated on a lake or river to the same place, or to any other place in Canada, either directly or by way of a place outside Canada, (

c) the carriage of passengers by ship from any place situated on the St. Lawrence River northeast of the Saint Lambert lock or on the Fraser River west of the Mission Bridge (

i) to the same place, without any call at any port outside Canada, other than one or more technical or emergency calls, or (ii) to any other place in Canada, other than as an in-transit call, either directly or by way of a place outside Canada, (

d) the carriage of passengers by ship from any place in Canada other than from a place to which paragraph (

b) or (

c) applies (

i) to the same place, without any call at any port outside Canada, other than one or more technical or emergency calls, or (ii) to any other place in Canada, other than as an in-transit call, either directly or by way of a place outside Canada, (

e) the carriage of passengers by ship (

i) from any place in Canada to any place above the continental shelf of Canada, (ii) from any place above the continental shelf of Canada to any place in Canada, or (iii) from any place above the continental shelf of Canada to the same place or to any other place above the continental shelf of Canada where the carriage of the passengers is in relation to the exploration, exploitation or transportation of the mineral or non- living natural resources of the continental shelf of Canada, and (

f) the engaging, by ship, in any other marine activity of a commercial nature in Canadian waters and, with respect to waters above the continental shelf of Canada, in such other marine activities of a commercial nature that are in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada; ( cabotage ) …

(1) No foreign ship or non-duty paid ship shall, except in accordance with a licence, engage in the coasting trade. … " 4(1) Subject to

section 7, on application therefor by a person resident in Canada acting on behalf of a foreign ship, the Minister of Public Safety and Emergency Preparedness shall issue a licence in respect of the foreign ship, where the Minister is satisfied tha " t (

a) the Agency has determined that no Canadian ship or non-duty paid ship is suitable and available to provide the service or perform the activity described in the application; (

b) where the activity described in the application entails the carriage of passengers by ship, the Agency has determined that an identical or similar adequate marine service is not available from any person operating one or more Canadian ships; (

c) arrangements have been made for the payment of the duties and taxes under the Customs Tariff and the Excise Tax Act applicable to the foreign ship in relation to its temporary use in Canada; (

d) all certificates and documents relating to the foreign ship issued pursuant to shipping conventions to which Canada is a party are valid and in force; and (

e) the foreign ship meets all safety and pollution prevention requirements imposed by any law of Canada applicable to that foreign ship. … 5 Subject to

section 7, on application therefor by a person resident in Canada acting on behalf of a non-duty paid ship, the Minister of Public Safety and Emergency Preparedness shall issue a licence in respect of the non-duty paid ship, where the Minister is satisfied that (

a) the Agency has determined that no Canadian ship is suitable and available to provide the service or perform the activity described in the application; (

b) where the activity described in the application entails the carriage of passengers by ship, the Agency has determined that an identical or similar adequate marine service is not available from any person operating one or more Canadian ships; and (

c) arrangements have been made for the payment of the duties and taxes under the Customs Tariff and the Excise Tax Act applicable to the non-duty paid ship in relation to its temporary use in Canada. … 12 F or the purposes of enforcing this Act, the Minister of Transport may designate any person or class of persons as enforcement officers and shall furnish every enforcement officer with a certificate of that designation … 13

(1) Where a ship contravenes subsection 3(1), the ship is guilty of an offence and is liable on

summary conviction to a fine not exceeding fifty thousand dollars. Decision under review [ 12 ] The June 20, 2019 email from Ms. Gelinas states as follows: Dear Mr. Wrottesley: Thank you for your submission regarding the activities of the Cable Innovator, dated 25 March 2019. I write to advise you that the information provided does not change Transport Canada’s assessment that the standby activities in support of cable repair by the Cable Innovator in Canadian waters are considered to be commercial marine activities under the Coasting Trade Act, and meets the definition of coasting trade found in section 2(1)(

f) of the Act. Based on your most recent correspondence as well as your previous correspondence, we understand that Global Marine Systems, Ltd., disputes that the vessel is engaged in a marine activity. It is our assessment that a crewed ship, in port, being maintained in a state of readiness to deploy to repair an emergency cable break within 24 hours as per the North American Zone agreement under which the ships [ sic ] operates, is clearly engaged in a marine activity. The Cable Innovator should therefore obtain a coasting trade license for cable repair and standby activities.

I would also note again that vessels that are in non-compliance with the Coasting Trade Act can face detention, and associated penalties, including fines upon

summary conviction, as outlined in

section 13 of the Act. I trust that this concludes the matter. Sincerely, Emilie Gelinas

Issues [13] Global Marine submits that there are two issues to be addressed at this judicial review: 1. Is the Minister’s

interpretation of the phrase "“marine activity of a commercial nature”" at s 2(1)(

f) of the Coasting Trade Acterroneous and does it fail to respect the modern rules of statutory

interpretation?2. Did the Minister unreasonably conclude that "“Cable Innovator”" was engaged in coasting trade? [14] The Minister raises a preliminary issue, being whether the June 20, 2019 email is a decision or is otherwise reviewable as anadministrative action. The Minister submits that the issue for substantive review is whether Transport Canada’s assessment that thestandby activities of the "“Cable Innovator”" fall within the definition of "“coasting trade”" is reasonable. [15] In my view, the issues are as follows: i. Preliminary issue: Is the June 20, 2019 email reviewable on judicial review?If so,ii.

Was the Minister’s decision reasonable?

Standard of review [16] While Global Marine in its written submissions took the position that the Minister’s decision should be reviewed on the correctnessstandard, those submissions were filed prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 ("“Vavilov”"). [17] When appearing before me, counsel for Global Marine and for the Minister submitted, and I agree, that the applicable standard ofreview is reasonableness. [18] Counsel for Global Marine points out that in Vavilov the Supreme Court, amongst other things, stated that a "“reasonable decision isone that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrainthe decision maker”" (Vavilov at para 85).

Further, that the particular context of a decision constrains what will be reasonable for anadministrative decision maker to decide in a given case, and that what is reasonable in a given situation will always depend on theconstraints imposed by the legal and factual context of the particular decision under review (Vavilov at paras 88, 90, 105).

Indetermining if a decision is reasonable, a reviewing court asks whether the decision, "“bears the hallmarks of reasonableness —justification, transparency and intelligibly — and whether it is justified in relation to the relevant factual and legal constraints that bear onthe decision”" (Vavilov at para 99). To be reasonable, a decision must be "“justified in relation to the constellation of law and facts thatare relevant to [it]”" (Vavilov at para 105). [19] The Minister submits that there is a discretionary element inherent in Transport Canada’s

interpretation because the words at issuein s 2(1)(f), "“any other maritime activity of a commercial nature”", are not defined in the Coasting Trade Act. As such, their meaningmust be informed by Transport Canada’s expertise in maritime matters and with reference to the factual context.

Transport Canada’sinterpretation should be reviewed for reasonableness in the manner set out in Vavilov (at paras 91-98). [20] In my view, paragraph 85 of Vavilov provides a concise statement of what a reviewing court is to be concerned with whenassessing an administrative decision utilizing the reasonableness standard: [85] Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court toassess whether the decision as a whole is reasonable.

As we will explain in greater detail below, a reasonable decision is onethat is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law thatconstrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision. Preliminary Issue: Is the June 20 email a reviewable on judicialreview? The Minister’s position [21] The Minister submits that Global Marine misconstrues the June 20, 2019 email as being a "“final decision”" by Transport Canadathat is capable of being judicially reviewed.

The Minister acknowledges that judicial review is not be restricted to decisions and ordersand may be brought in respect of administrative action (Federal Courts Rules, SOR/98-106, Rule 300; Air Canada v Toronto PortAuthority Et Al, 2011 FCA 347 at para 24 ("“Air Canada”")).

However, the Minister submits that the subject email is not a decision orany other action that affects the legal rights of Global Marine, or one that imposes legal obligations or prejudicial effects (Air Canada atparas 28-29). [22] While s 18.1 of the Federal Courts Act permits an application for judicial review "“by anyone directly affected by the matter inrespect of which relief is sought”", the Minister characterizes the email from Ms. Gelinas as non-binding guidance which does notdirectly affect Global Marine’s rights (Timberwest Forest Corp v Canada, 2007 FC 148 at para 92, aff’d 2007 FCA 389).

The Ministeranalogizes the email to an advance ruling or courtesy letter, neither of which constitute a reviewable decision or reviewableadministrative action (Philipps v Librarian and Archivist of Canada, 2006 FC 1378 at para 32 ("“Philipps”"); Hughes v Canada(Customs and Revenue Agency), 2004 FC 1055 at para 6 ("“Hughes”"); Rothmans, Benson & Hedges Inc v Minister of National Revenue, (FC), 148 FTR 3, [1998] FCJ No 79 at para 28 (FCTD) (QL/Lexis) ("“Rothmans”"); Democracy Watch v Conflict of

Interest and Ethics Commissioner, 2009 FCA 15 at paras 9-11 ("“Democracy Watch”")). The Minister further submits that GlobalMarine had no statutory right to a determination of any kind by Transport Canada. Ms. Gelinas’ responsibilities involve theadministration of the Coasting Trade Act, including the provision of non-binding guidance. There is no decision taken when providingsuch general guidance. Ms. Gelinas’ role in that regard is distinct from enforcement actions that may be taken under ss 13-16 of theCoasting Trade Act and which would affect the legal rights and interests of a party.

The June 20, 2019, email contained only TransportCanada’s assessment and advice that Global Marine should obtain a coasting trade licence for the repair and standby activities of the"“Cable Innovator”". There was no direction or order to do so.

The email contains no determination of Global Marine’s rights, but doesflag consequences that could arise in the future for non-compliance with the Coasting Trade Act. [23] The Minister also submits the June 20, 2019 email is the last email in a series of correspondence where the same viewpoint wasreiterated — that the activities of the "“Cable Innovator”" met the definition of a coasting trade as found in s 2(1)(

f) of the CoastingTrade Act. There is no reason to treat the June 20, 2019 email as a decision when compared with all of the previous emails setting outthe same position. Given this, even if the June 20, 2019 email could be considered to be a decision, so too could the priorcommunications. On that basis, and because Global Marine did not seek judicial review of these prior decisions, it is now outside the 30day time limit to do so with respect to the earlier, substantially similar, Transport Canada communications.

Global Marine’s position [24] Global Marine points to Larny Holdings Ltd v Canada (Minister of Health), 2002 FCT 750 ("“Larny”") to support its view thatjudicial review under s 18.1 of the Federal Courts Act is intended to be broad in scope and given a liberal

interpretation. This can extendto letters stating that, in the regulator’s view, a violation of legislation has occurred and warning of further enforcement action if thepractice at issue is not curtailed (also Markevich v Canada, (FC), 163 FTR 209, 172 DLR (4th) 164 (FCTD)("“Markevich”"); Morneault v Canada (Attorney General), 189 DLR (4th) 96, (FCA) ("“Morneault”"); GestionComplexe Cousineau

(1989) Inc v Canada (Minister of Public Works and Government Services), (FCA), 125 DLR(4th) 559, [1995] FCJ No 735 (FCA) (QL/Lexis) ("“Gestion”"); Falls Management Co v Canada (Minister of Health), 2005 FC 924 atparas 18-20).

Analysis [25] In Air Canada, the Federal Court of Appeal addressed what may properly be the subject of a judicial review: [24] Subsection 18.1(1) of the Federal Courts Act provides that an application for judicial review may be made by theAttorney General of Canada or by anyone directly affected by “the matter in respect of which relief is sought.” A “matter”that can be subject of judicial review includes not only a “decision or order,” but any matter in respect of which a remedymay be available under

section 18 of the Federal Courts Act: Krause v. Canada, (FCA), [1999] 2 F.C.476 (C.A.).

Subsection 18.1(3) sheds further light on this, referring to relief for an “act or thing,” a failure, refusal or delayto do an “act or thing,” a “decision,” an “order” and a “proceeding.” Finally, the rules that govern applications for judicialreview apply to “applications for judicial review of administrative action,” not just applications for judicial review of“decisions or orders”: Rule 300 of the Federal Courts Rules. [25] As far as “decisions” or “orders” are concerned, the only requirement is that any application for judicial review ofthem must be made within 30 days after they were first communicated: subsection 18.1(2) of the Federal Courts Act. … [28] The jurisprudence recognizes many situations where, by its nature or substance, an administrative body’s conduct doesnot trigger rights to bring a judicial review. [29] One such situation is where the conduct attacked in an application for judicial review fails to affect legal rights, imposelegal obligations, or cause prejudicial effects: Irving Shipbuilding Inc. v.

Canada (Attorney General), 2009 FCA 116, [2010]2 F.C.R. 488; Democracy Watch v. Conflict of Interest and Ethics Commission, 2009 FCA 15, (2009), 86 Admin. L.R. (4th)149. [30] The decided cases offer many illustrations of this situation: e.g., 1099065 Ontario Inc. v. Canada (Minister of PublicSafety and Emergency Preparedness), 2008 FCA 47, 375 N.R. 368 (an official’s letter proposing dates for a meeting);Philipps v. Canada (Librarian and Archivist), 2006 FC 1378, [2007] 4 F.C.R. 11 (a courtesy letter written in reply to anapplication for reconsideration); Rothmans, Benson & Hedges Inc. v.

Minister of National Revenue, (FC), [1998] 2 C.T.C. 176, 148 F.T.R. 3 (T.D.) (an advance ruling that constitutes nothing more than a non-binding opinion). [26] To assess whether or not the June 20, 2019 email may be subject to judicial review, it is necessary to first review the relevantevidence and the factual background that led to the subject email. [27] The Bertin Affidavit states that: 22. The Marine Policy Directorate (“Directorate”) is a division of TC with responsibility for, amongst other things,administration and enforcement activities under the [Coasting Trade] Act. These responsibilities include:

a) conducting compliance and enforcement action as mandated by sections 12-16 of the Act;

b) maintaining one or more designated officers with responsibility for takings enforcement action under the Act; and

c) providing non-binding guidance on the administration of the Act to external stakeholders, such as prospective coastingtrade licence applicants, and other government departments.

[ 28 ] Further, that the responsibilities of Ms. Gelinas, the author of the June 20, 2019 email, include the administration of the Coasting Trade Act . In particular, 24. As part of this administrative function, Ms. Gelinas and other members of the Directorate provide non-binding guidance and advisory opinions in response to inquiries from stakeholders, such as vessel owners/operators and shipping agents, regarding how the Act would likely be applied to a particular set of circumstances.

These requests for guidance are quite frequent: in 2019, the Directorate has received 43 requests to date for guidance or advisory opinions regarding the likely application of the Act. Similarly, the Directorate reaches out to stakeholders when it receives information to suggest that they may not be in compliance with the Act, as it did here, in order to advise of the Act’s requirements and to provide guidance. [ 29 ] Ms. Gelinas is also an enforcement officer, designated as such by the Minister of Transport under s 12(1) of the Coasting Trade Act .

As an enforcement officer, she makes decisions on enforcement action including determining whether the activities or actions of a vessel constitute a violation of the Act that warrants the laying of charges. Additionally, an enforcement officer may order the detention and search of a vessel in relation to the laying of a charge under the Coasting Trade Act . She has not taken enforcement action against the " “Cable Innovator” " . [ 30 ] Global Marine prepared its C47 application, dated September 21, 2016, and submitted it along with a letter dated September 27, 2016, providing background to the C47 application.

The CTA permitted the temporary importation of the vessel by way of CBSA’s October 17, 2016 letter. [ 31 ] On May 2, 2017, Ms. Katerina Klimas, a Policy Analyst for the Marine Policy Directorate, wrote to Global Marine’s Canadian agent, King Bros. Limited, with respect to the C47 Temporary Admission. The email states that it had come to the attention of Transport Canada that a coasting trade licence had not yet been obtained for the " “Cable Innovator” " and that the vessel was on standby in Victoria Harbour for the activities described in the C47 Application.

Further, that foreign vessels that have been granted temporary admission to Canada’s coasting trade are expected to acquire their coasting trade licence prior to or at the same time that they begin the marine activity of a commercial nature for which the application was made. Ms. Klimas stated, " “[p]lease kindly obtain your Coasting Trade Licence as soon as possible. If you wish to discuss further, please don’t hesitate to contact me directly.” " [ 32 ] On May 10, 2017, Ms. Louise Laflamme, Chief, Marine Policy and Regulatory Affairs, wrote a follow up email to King Bros.

Limited stating that vessels that are in non-compliance with the Coasting Trade Act may face penalties and vessel detention and drawing attention to ss 3(1), 13(1)-(2) and 16(1) of the Act in that regard. The letter states that immediate attention to the matter would be greatly appreciated and that CBSA was copied on the email so it would be aware of the issue. The email also indicated that the recipient should not hesitate to contact Ms. Laflamme should there be questions on the information provided or if the recipient wished to discuss it further. [ 33 ] King Bros.

Limited responded on the same date stating that the " “Cable Innovator” " was on standby and was not, at that time, engaged in coasting trade. Should it get a job in Canadian waters, it would then take the steps necessary to obtain a coasting trade licence. [ 34 ] Ms. Gelinas responded by email of May 11, 2017.

In her email, she summarized the C47 application made on behalf of the " “Cable Innovator” " and stated that as the vessel was operating on standby (the activity for which had been applied for) during the timeframe outlined in all of the attached documents, and that she again asked that a coasting trade licence for the " “Cable Innovator” " be obtained. [ 35 ] By email to King Bros. Limited dated July 13, 2017, Ms.

Gelinas stated that the activity of maintaining the " “Cable Innovator” " in a state of readiness, on standby for cable repairs off the west coast of Canada, is considered a marine activity of a commercial nature under the Coasting Trade Act . As such, a coasting trade licence was required for the vessel to undertake the activity of being on standby. And: As the vessel is currently in non-compliance with the Act, I will kindly ask again that you obtain the coasting trade licence for the Cable Innovator, and that you inform Transport Canada once you have obtained it.

If the licence is not obtained, TC will take action to detain the vessel until a licence is obtained or until the vessel permanently leaves Canadian waters. As noted below, and outlined in the Act under

section 13, where a ship contravenes subsection 3(1), the ship is guilty of an offence and is liable on

summary conviction to a fine not exceeding fifty thousand dollars, and, where an offence is committed by a ship under subsection (1) on more than one day or is continued by the ship for more than one day, it shall be deemed to be a separate offence for each day on which the offence is committed or continued. [emphasis in original] [ 36 ] Ms. Gelinas stated that she would follow up shortly to discuss and ensure that the information she provided had been understood. [ 37 ] On July 13, 2017, Mr. Simon Smith, Vice President of King Bros. Limited, sent an email to Ms. Gelinas indicating his recent involvement and asking her to identify the

section of the Coasting Trade Act that expressly defines a ship on standby as engaging in the coasting trade. He also noted that King Bros. Limited had never encountered this issue with any prior C47 application approvals. [ 38 ] Ms. Gelinas responded on July 14, 2017, noting that coasting trade is defined in the Act, restating Transport Canada’s position that being on standby is considered to be a marine activity of a commercial nature falling under s 2(1)(f), and reproducing ss 2(1)(a)-(

f) of the Coasting Trade Act . She asked to be advised when King Bros. Limited had received further direction from Global Marine and suggested that they speak by phone the following week in order to resolve the issue. [ 39 ] By letter of July 21, 2017, Global Marine provided detailed information as to its operations, including pursuant to the NAZ Contract, the role of the " “Cable Innovator” " and its " “port calls” " in Victoria.

Global Marine stated that it disagreed that the vessel’s port calls in Victoria constitute commercial marine activities in Canada for which a coasting trade licence is required, noting that it had maintained C47 temporary admissions for vessels for over 10 years and that this was the first time Transport Canada had demanded a

C48 licence be immediately obtained. Global Marine stated that it welcomed the opportunity to meet to discuss the issues and to addressany concerns Transport Canada may have. [40] On August 28, 2017, Ms. Gelinas replied to the July 21, 2017 letter and reiterated Transport Canada’s position that the activity ofbeing on standby to provide a service is considered to be coasting trade and that a licence needs to be obtained before the vesselcommences its activities or operations.

She noted again that vessels not in compliance can face detention and associated penalties. [41] By email of August 29, 2017, Global Marine sought a meeting. [42] By email of August 30, 2017, Ms. Gelinas acknowledged the request and stated that "“[w]e remain open to dialogue with GlobalMarine”" and that Transport Canada was available to meet on September 6, 2017.

Further: The purpose of the meeting will be for Global Marine to provide broader awareness of CS INNOVATORS activities and forTransport Canada to ensure that Global Marine has clarity on what constitutes a coasting trade activity under Canada’sCoasting Trade Act. In advance of the meeting, we ask that Global marine provide us with any additional information thatwill need to be considered during our meeting. [43] Global Marine provided further information on September 1, 2017.

The meeting was held on September 6, 2017, and on the samedate Global Marine provided Transport Canada with a copy the presentation it had made at the meeting. [44] Ms. Gelinas acknowledged the information by email of September 7, 2017 and stated that Transport Canada would review it. [45] Global Marine followed up by emails on October 6, 2017 and on October 11, 2017. In the latter email, it inquired if Ms.

Gelinashad decided her position with respect to the "“Cable Innovator”" requiring a permission under the Coasting Trade Act to simply be inCanadian waters in port awaiting repair jobs and that Global Marine "“need that formal decision in order to help decide how we willmove forward”". [46] By email of October 11, 2017, Ms. Gelinas stated that Transport Canada was still looking into it and were doing their best to getback to Global Marine as soon as possible. [47] On July 4 and 5, 2018, Global Marine wrote to the Minister.

It stated that it had the benefit of having a cable ship based in Victoriasince the late 1970s. And, while there had been no change in the statutory regime nor in Global Marine’s operating practices, in May2017 Transport Canada advised that a C48 coasting trade licence was required for the "“Cable Innovator”" while it is sitting idle inVictoria Harbour. Global Marine attached a five-page memorandum outlining why it did not agree with Transport Canada’s position that,in so doing, the vessel was engaged in a "“marine activity of a commercial nature”" pursuant to s 2(1)(

f) of the Coasting Trade Act.Global Marine asked the Minister to confirm that while sitting idle the "“Cable Innovator”" was not subject to s 2(1)(f). [48] On October 12, 2018, Ms. Gelinas sent an email to Global Marine apologising for the delay in reply and stating that she would liketo

schedule a meeting to discuss the operating of the "“Cable Innovator”" at the port of Victoria. Global Marine responded on October15, 2018, and again on November 8, 2018, indicating willingness to meet and that it would be helpful to know the specific topics to becovered in advance of the meeting. [49] On November 9, 2019, Mr. Marc-Yves Bertin wrote to Global Marine identifying himself as the Director General responsible forMarine Policy at Transport Canada.

He stated that it would be important for his team to meet with Global Marine to discuss GlobalMarine’s letter to the Minister but that in anticipation of the meeting, "“I should reconfirm that the activity of ‘keeping the vessel onpermanent standby to attend very short notice cable repairs as specified by the cable owners contracts’ — which was noted in your mostrecent coasting trade application submitted to the Canadian Transportation Agency on September 21, 2016 — meets the definition ofcoasting trade found under section 2(1)(

f) of the Coasting Trade Act. Therefore, when the Cable Innovator is in Canadian waters onstandby, a coasting trade licence is required.”" [50] On February 27, 2019, Global Marine met with the Assistant Deputy Minister of Transport Canada to discuss the issue. On March25, 2019, at the Assistant Deputy Minister’s request, Global Marine provided its written submission outlining why it held the view thatsitting idle on standby is not a marine activity of a commercial nature and, consequently, does not require a C48 licence. This includedthe rejection of Transport Canada’s

interpretation of s 2(1)(

f) and Global Marine’s view of how the

section is properly interpreted. [51] The next communication was the June 20, 2019 email from Ms. Gelinas, which is reproduced above. [52] I am not persuaded that the June 20, 2019 email, which marked the culmination of an extended discussion, can be properlyanalogized to a courtesy letter.

Courtesy letters are typically written in reply to a request that a prior decision be reconsidered. [53] For example, in Hughes v Canada (Customs and Revenue Agency), 2004 FC 1055, referenced by the Minister, pursuant to aninternal selection process the applicant had been determined to be an unqualified for a position with Canada Customs and RevenueAgency ("“CCRA”"). He did not seek judicial review of that decision. Instead, he sought to have the decision re-opened by writing aletter complaining about the selection process.

This resulted in a letter in response from the Assistant Commissioner of the HumanResources Branch of the CCRA explaining that, according to the staffing program, there was no further available recourse. [54] The applicant attempted to characterize that letter as a decision subject to judicial review. This Court did not agree stating: [6] I agree with the Respondent that, at most, Mr. Tucker's letter is a courtesy letter.

The case law is clear that a courtesyletter written in response to a request for reconsideration is not a decision or order within the meaning of the Federal CourtAct, and, therefore, cannot be challenged by way of judicial review (Batkai v. Canada (M.C.I.), 2002 FCT 514 at para. 13(F.C.T.D.); Krishnamurthy v. Canada (M.C.I.) [2000] F.C.J. No. 1998 (Q.L.) at para. 14 (F.C.T.D.); Brar v. Canada(M.C.I.) (1997), (FC), 140 F.T.R. 163 at paras. 7-9 (F.C.T.D.)).

[55] Similarly, Brar v Canada (Minister of Citizenship and Immigration), (FC), 140 FTR 163, [1997] FCJ No 1527(FCTD) (QL/Lexis), also relied upon by the Minister, concerned the judicial review of a decision of a visa officer refusing to reconsiderthe refusal of the applicant’s application for permeant residence. There this Court held that: [7] In these proceedings the applicant Brar is not challenging the visa officer's refusal letter of January 23, 1996. He israther, challenging the letter of July 8, 1996, which refused the request for reconsideration.

The respondent characterizesthat letter as simply a “courtesy response”, which does not constitute a “decision” as that phrase is employed in

section 18.1of the Federal Court Act. [8] I agree with the respondent. This view is supported by the decision of Noël J. in Dumbrava v. M.C.I., where it wasdecided that when there is a fresh decision based on new facts, there is always “a fresh exercise of discretion”. In the case atbar, the visa officer did not refer to any new facts or submissions nor did she state that she was reconsidering her decision. As was stated by McKeown, J. in Dhaliwal v.

M.C.I., counsel cannot extend the date of decision by writing a letter with theintention of provoking reply". [9] On this record, there is nothing to explain why Brar’s counsel did not file a timely application for judicial review or anapplication for extension of time. I agree with respondent’s counsel that the letter of July 8, 1996, is merely a courtesyresponse and not subject to review pursuant to

section 18.1. On this basis, the within application for judicial review isdismissed. However, I propose to express my view on the second issue raised by the parties, namely the issue of functusofficio. [footnotes omitted] [56] In this matter, as demonstrated by the correspondence described above as between Transport Canada and Global Marine, it is clearthat Transport Canada had adopted its view as to the

interpretation and application of s 2(1)(

f) when it initiated contact with GlobalMarine. It is also apparent that it did not alter that position over the course of the subsequent discussions. However, Transport Canadaalso repeatedly invited Global Marine to provide information, which Global Marine viewed as supportive of its position, suggested andconvened meetings with Global Marine for the purpose of allowing it to pursue its position, and significantly, Transport Canadaindicated that it was considering the information provided.

Indeed, the June 20, 2019 email explicitly acknowledged Global Marine’sMarch 25, 2019 submission. [57] In my view, by inviting Global Marine to provide further information, it must be assumed that Transport Canada intended to anddid consider that information. And, while it did not change its initial assessment, it is not apparent that a final decision was reached byTransport Canada prior to the June 20, 2019 letter. Ms. Gelinas concludes her letter by stating, "“I trust that this concludes the matter”,"which indicates a finality not otherwise apparent by the holding of meetings and the exchange of communications.

Thus, this is not asituation where a final decision was made and communicated as such to Global Marine, who then sought a reconsideration. The June 20,2019 email is not, therefore, in the nature of a courtesy letter. [58] Similarly, Philipps does not assist the Minister as it is distinguishable on its facts from the matter before me. In Philipps, acollection of private archives were given to Library and Archives Canada ("“LAC”") subject to the donor’s condition that there no bepublic access to the archives until 20 years after his death.

Subsequently, his wife requested that this period be extended to 10 years afterher death. LAC agreed. LAC later again changed the restriction on access to 25 years after the death of the donor’s wife. The applicanthad made several requests for access, and following an exchange of correspondence on the issue, LAC eventually sent the applicant aletter informing him that the existing restrictions on access would be maintained and that its decision was final.

The applicant soughtjudicial review, which was granted in part. [59] This Court held that the letter was susceptible to judicial review and that LAC could not claim that it was a mere courtesy inresponse to a request made by the applicant. The Court noted that prior jurisprudence held that a courtesy letter written in reply to arequest for a review or a reconsideration is not a decision or an order within the meaning of the Federal Courts Act and, thus, cannot bechallenged by way of a judicial review.

Further, that before there is a new decision which is subject to judicial review, there must be afresh exercise of discretion such as a reconsideration of a prior decision on the basis of new facts (Philipps at para 32). [60] The Court in Philipps concluded that the letter at issue was not a courtesy letter because, by a prior letter, LAC had decided toreview the decision to deny the applicant access.

Accordingly, by the prior letter, LAC had decided to use its discretion to review itsprior decision. [61] In this matter, and unlike Philipps, it is not clear in the circumstances before me that a prior final decision had been made andcommunicated as such, but that, due to a change of circumstances and new information, Transport Canada utilized a fresh exercise of itsdiscretion and made a new decision. Rather, as indicated above, Transport Canada advised Global Marine of its assessment of theapplication of s 2(1)(

f) of the Coasting Trade Act but also invited Global Marine to engage in discussions, provide information and attendmeetings to discuss why it did not agree with Transport Canada that s 2(1)(

f) applied to the standby operations of the "“CableInnovator”". While Transport Canada did not change its view as a result of those representations, it also did not clearly signal that it hadmade a final decision until the June 20, 2019 email. [62] In sum, based on its communications and actions, it is not clear that Transport Canada made a prior final decision. Therefore, itsJune 20, 2019 email is not a courtesy letter as it is not a response to a request for reconsideration.

In any event, even if I am wrong andeven if Transport Canada made a prior final decision but decided to utilize a fresh exercise of its discretion to consider the newsubmissions of Global Marine that it invited, and then made a new decision on June 20, 2019, that new decision would not be a mereresponse to a reconsideration request. [63] The Minister also submits that the June 20, 2019 email falls into the category of non-binding guidance, or is analogous to anadvance ruling. In that regard, the Minister relies on Rothmans.

There, the applicant requested an advance ruling from Revenue Canada,Customs, Excise and Taxation about whether certain tobacco products met the definition of "“tobacco stick”". In its advance ruling,

Revenue Canada characterized some of the products as tobacco sticks ( Rothmans at para 24). The applicant challenged that characterization and sought an order quashing the decision. The applicant’s originating notice of motion was struck and the within application was dismissed because, " “[t]he advance ruling does not grant or deny a right, nor does it have any legal consequences. It does not have the legal effect of settling the matter or purport to do so. It is at the most a non-binding opinion.

Moreover, there is no evidence that any tax has been levied on a product corresponding to the prototype of the product in the advance ruling” " ( Rothmans at para 28). [ 64 ] The Minister points to the Guidelines Respecting Coasting Trade Licence Application, s 4.6.1, in support of the view that Transport Canada was providing guidance and advice only: 4.6.1 Transport Canada 84.

While it is a proponent’s responsibility to obtain a coasting trade licence in respect of any foreign or Canadian registered non-duty paid ship engaged in coasting trade, Transport Canada may be contacted for guidance on the application of the Coasting trade Act with respect to particular activities (i.e. whether an activity is or is not considered to be coasting trade)… 85. Requests regarding what does or does not constitute coasting trade can be directed to Transport Canada, Marine Policy. [ 65 ] Of note here is that Global Marine did not contact Transport Canada and seek its guidance.

Rather, on May 2, 2017, Transport Canada contacted Global Marine’s Canadian agent, King Bros.

Limited, stating that it had come to the attention of Transport Canada that a coasting trade licence had not yet been obtained for the " “Cable Innovator” " and that the vessel was on standby in Victoria Harbour for the activities described in the C47 application. [ 66 ] The Bertin Affidavit states that on or about April 2017, Transport Canada became aware for the first time that the " “Cable Innovator” " was operating on standby in the Port of Victoria in a state of readiness to repair subsea fibre optic cable within 24 hours in accordance with the obligations of the NAZ Contract.

Transport Canada became aware of this because of litigation commenced by the International Longshore and Warehouse Union ( " “ILWU” " ), challenging the employment by the " “Cable Innovator” " of foreign temporary workers as crew. In support of its application for judicial review, Global Marine submitted the affidavit of John Wrottesley, Permitting Manager for Global Marine ( " “Wrottesley Affidavit” " ).

This states that on August 18, 2016, Global Marine received a letter from the ILWU asserting that Global Marine’s ship, the CS " “Wave Venture” " , which had been maintained in Victoria Harbour and was later replaced by the " “Cable Innovator” " , was engaged in cabotage as defined under the Coasting Trade Act .

The ILWU letter is provided as an exhibit to the " Wrottesley Affidavit " and asserts that the ILWU was aware of the coasting trade licence application submitted for the CS " “Wave Venture” " , that the ILWU has members who are available to crew vessels in a wide range of unlicensed marine positions, and inviting Global Marine to make such crewing arrangements on the CS " “Wave Venture” " while it is in Canada. [ 67 ] Viewed in this context, Transport Canada’s communications to Global Marine cannot be seen as a circumstance where, pursuant to the Guidelines Respecting Coasting Trade Licence Application, a proponent sought and Transport Canada provided non-binding advice as to the potential application of the Coasting Trade Act in its particular contemplated circumstances.

Rather, here Transport Canada initiated contact with Global Marine after the C47 Temporary Admission had been granted to point out what it had come to believe was non-compliance with the Coasting Trade Act . The guidelines do not speak such a circumstance. [ 68 ] That said, the Bertin Affidavit states that part of the responsibilities of the members of the Marine Policy Directorate, including Ms.

Gelinas, are to provide non-binding guidance in response to shareholders as to the application of the Act (having responded to 43 such inquiries to date), and that the Directorate also " “reaches out” " to stakeholders when it receives information suggesting non-compliance, as it did in this situation (no other such instances are indicated), to advise of the Act’s requirements and provide guidance.

While it may be that only non-binding guidance as to the application of the Act, or even non-compliance, has been provided in other circumstances, in my view, the circumstances here go beyond the providing of mere non-binding advice. Here, a final decision was conveyed by the June 20, 2019 email expressing Transport Canada’s determination that the " “Cable Innovator” " was in non-compliance with the Act because a coasting trade license was required for its standby operations.

The email also conveyed Transport Canada’s clear, if not explicit, message that continued non-compliance would result in enforcement action. In that regard, it is to be recalled that Ms. Gelinas, the author of the June 20, 2019 email, is a designated enforcement officer. [ 69 ] The Minister submits that Ms. Gelinas’ email to Global Marine did not create a binding outcome because she did not pursue enforcement, despite her emails stating that the " “Cable Innovator” " was in non-compliance. Rather, she was merely exercising an advisory function. The Minister submits that at no time did Ms.

Gelinas actually say that she would prosecute if the licence was not obtained. Rather, that she had the discretion to do so. In my view, this submission cannot withstand scrutiny. Transport Canada, the regulator, was informing Global Marine that in Transport Canada’s view the " “Cable Innovator” " was in non-compliance with the Coasting Trade Act , that it was required by that legislation to get a C48 coasting trade licence, and if they did not, that the legislation permits the laying of charges.

It is not realistic to suggest that Transport Canada might not have followed through with enforcement action if Global Marine did not comply or remove its vessel from Canadian waters. The clear message was that Transport Canada could and would do so if the deemed non-compliance was not remedied. [ 70 ] Moreover, in her July 13, 2017 email to Global Marine, Ms.

Gelinas did state that the vessel would be detained if the non- compliance was not remedied: As the vessel is currently in non-compliance with the Act, I will kindly ask you again that you obtain the coasting trade licence for the Cable Innovator, and that you inform Transport Canada once you have obtained it .

If the licence is not obtained, TC will take action to detain the vessel until a licence is obtained or until the vessel permanently leaves Canadian waters. [emphasis in original] [ 71 ] She then went on to specify the penalty provisions of the Act. [ 72 ] Accordingly, in my view, this is not a circumstance in which non-binding advice was being provided. This was a warning of

enforcement action if the deemed non-compliance was not remedied. [ 73 ] It is true that if Global Marine continued to disagree with Transport Canada’s

interpretation and application of the Coasting Trade Act , and if Ms. Gelinas did pursue prosecution, then Global Marine would have an opportunity at trial to defend its

interpretation of that legislation. Conviction was not a certainty. [ 74 ] However, few responsible ship owners would chose to subject themselves to prosecution in order to avail of a challenge to a regulator’s

interpretation of legislation. In this case, Global Marine did not want to take such a risk. Not simply the risk of a fine, but also the risk of being detained, which Ms. Gelinas pointed out on several occasions, and, therefore, being unable to respond to its contractual obligations, the repair of subsea fibre optic cables. Global Marine therefore removed the " “Cable Innovator” " from the Canadian port and brought this application for judicial review challenging Transport Canada’s

interpretation of s 2(1)(

f) of the Coasting Trade Act . [ 75 ] This brings us to Larny . There, the Manager of the Tobacco Enforcement Unit of Health Canada sent a letter outlining Health Canada’s position on cash rebates offered on the purchase of multiple packs of cigarettes. The letter stated that its purpose was to assist the recipients in complying with s 29 of the Tobacco Act (now, the Tobacco and Vaping Products Act, SC 1997, c 13 ) which precluded offering cash rebates for the purchase of tobacco products, and set out the offence provisions of that legislation.

The letter also stated that warning letters would be sent to retailers who contravened s 29. The Minister of Health and the Manager were responsible for the administration and enforcement of the Tobacco Act and were of the view that selling multipacks of cigarettes at a price less than the price per pack, if sold individually, violated s 29 of the Tobacco Act . Having received the initial letter and a warning letter, the applicant stopped offering multipack prices and saw his sales decline.

The applicant characterised the letter as a direction from Health Canada ordering the applicant to cease and desist his marketing and pricing strategies and sought judicial review. [ 76 ] The Minister of Health took the position that as no legal consequences flowed from the letter it could not be viewed as a " “decision or order” " under s 18.1(2) of the Federal Courts Act . Further, that the activity involving the provision of a non-binding opinion as to how a provision of a statue is perceived to apply was not a decision that was open to review.

It was argued that neither the Minister nor the Manager had any direct enforcement power as they could not levy a sanction, revoke a licence or otherwise directly affect the applicant for what they may perceive to be a violation of s 29. While they could lay an information, it was then up to a court to determine the issue. [ 77 ] Justice Nadon did not agree, and was of the view that judicial review under s 18.1 was intended to be broad in scope and readily available to applicants. Referencing Gestion at pages 700-705 and Morneault at paras 40-43 , Justice Nadon concluded that, [18] Mr.

Justice Stone's remarks in Morneault , supra , like those of Décary J.A. in Gestion Complexe, supra , are to the effect that judicial review under

section 18 of the Act must be given a broad and liberal

interpretation, as a result of which a wide range of administrative actions will fall within the Court's judicial review mandate. It is also clear that judicial review is no longer restricted to decisions or orders that a decision maker was expressly charged to make under the enabling legislation. Rather, judicial review will extend to decisions or orders that determine a party's rights, even if the decision at issue is not the ultimate decision. It also follows from the Court of Appeal's decision in Morneault , supra , that the word "matter" found in

section 18.1 of the Act is not restricted to "decisions or orders", but encompasses any matter in regard to which a remedy might be available under

section 18 or subsection 18.1(3). [ 78 ] Justice Nadon also referenced Markevich (at paras 9-13 ) which concerned a letter written by a Revenue Canada officer, on behalf of the Minister of Revenue, advising the applicant therein that Revenue Canada had decided to try to recover unpaid taxes and to take measures to recover the previously written off debt. The Court found, notwithstanding the fact that the letter contained, " “no decision made pursuant to a statutory power, nor did it explicitly purport adversely to affect the rights or interests of individuals” " , that the letter still constituted

an act capable of judicial review by this Court. Two of the paragraphs of Markevich , which were quoted by Justice Nadon in Larny are as follows: [12] However, in order to qualify as an "act or proceeding" that is subject to judicial review, the administrative action impugned must be an "act or proceeding" of a "federal board, commission or other tribunal", that is a body or person "having, exercising or purporting to exercise jurisdiction or powers conferred by or under

an Act of Parliament" ( subsection 2(1) [as am. by S.C. 1990, c. 8, s. 1] of the Federal Court Act ). While the letter written on the Minister's behalf to the applicant that is the subject-matter of this application for judicial review was not

an act or proceeding by a federal body in the exercise of any statutory power, the Minister, of course, is a person having statutory powers under the Income Tax Act . [13] Even though not taken in the exercise of a statutory power, administrative action by a person having statutory powers may be reviewable as an "act or proceeding" under paragraph 18.1(3)(

b) if it affects the rights or interests of individuals. The letter in question here contained no decision made pursuant to a statutory power, nor did it explicitly purport adversely to affect any right or interest of the applicant. However, it is a reasonable inference from both the letter, and the applicant's communications with Ms. Kara, the writer of the letter, that it signified that Revenue Canada had made a decision to try to collect the unpaid tax and intended to take measures to attempt to recover the previously "written off" tax debt.

And, as is apparent from the requirements to pay that was subsequently issued, this was indeed the case. [ [emphasis in original] [ 79 ] Justice Nadon did not agree with the Minister that the letter in Larny was properly characterized as an opinion or warning letter not issued pursuant to any specific legislative authority, but rather as a courtesy to inform the applicant of the Minister’s position as to the effect of

section 29 of the Tobacco Act , nor that no legal consequence flowed to the applicant. Justice Nadon also disagreed that the letter was a non-binding opinion with respect to the

interpretation of s 29. Rather: [24] The direction sent by the respondents is, in my view, coercive, in that the purpose thereof is to threaten the applicant to immediately stop selling the multi-packs, failing which a charge would be laid and criminal prosecution might be commenced. I have no doubt that what the respondents hoped for was what in fact happened, i.e. that the applicant would

stop selling multi-packs so as to avoid criminal prosecution. As I have already indicated, the applicant's decision to stop selling multi-packs has resulted in financial loss. [ 80 ] Justice Nadon found that the letter was therefore a " “decision, order, act or proceeding” " and was reviewable by the Court. [ 81 ] In my view, this is a very similar circumstance to the one before me. The intent of the June 20, 2019 email was to compel Global Marine to take action, which in Transport Canada’s view, was required to bring the " “Cable Innovator” " into compliance with the Coasting Trade Act .

Transport Canada had made a decision that there was non-compliance. It also had the statutory authority to take enforcement action, which it had previously indicated would follow if a C48 coasting trade licence was not obtained. The email directly and prejudicially affected Global Marine’s rights and interests as Global Marine’s only options were to disrupt its operations and remove the " “Cable Innovator” " from Canadian waters, which it did, or face potential prosecution in order to challenge Transport Canada

interpretation and application of s 2(1)(

f) of the Coasting Trade Act . [ 82 ] In that regard, Larny is also significant because the Minister in that case also took the view that the applicant could only obtain a judicial declaration regarding the meaning of s 29 of the Tobacco Act from the court having jurisdiction in regard to a

summary conviction process. However, since no charge had been laid, that process had not then been commenced. In that regard, Justice Nadon stated: [30] If the applicant followed the respondents' logic, it would have put itself to the risk and expense of criminal prosecution in order to obtain a declaration concerning the meaning of

section 29 of the TA, and more particularly, whether the sale of multi-packs constitutes a "cash rebate" under the section. In other words, the applicant would have to engage in conduct that allegedly breached the statute, wait for a charge, suffer the prejudice that would result from the charge, and then expend substantial sums of money in defending the charge. That, surely, cannot be the solution to the applicant's difficulties. As Farwell L.J. stated at pages 420-421 in Dyson v.

Attorney-General , [1911] 1 K.B. 410 (C.A.) … …. [33] The case before me is surely not a case where the dispute between the parties is merely speculative. There is, in my view, a real and live dispute between the parties with respect to the

interpretation of

section 29 of the TA. The applicant is certainly justified, on the facts of the case, to seek a remedy from this Court without having to submit itself to a criminal prosecution. [34] The upshot of the matter is that the respondents were at liberty to lay a charge against the applicant and, hence, seek an

interpretation of

section 29 of the TA from the court of

summary conviction. However, the respondents did not charge the applicant, but proceeded to send coercive letters in the hope that compliance would result, without the necessity of having to lay a charge. In these circumstances, I am satisfied that this Court is a proper forum. I am also satisfied that this application for judicial review is not premature. (Also see Falls Management Co v Canada (Minister of Health) , 2005 FC 924 at paras 18-19 ; BPCL Holdings Inc v Alberta , 2006 ABQB 757 at para 9 ). [ 83 ] Here, Global Marine is in a similar situation. Ms.

Gelinas, a designated enforcement officer, clearly stated in her July 13, 2017 email that if a C48 licence was not acquired that Transport Canada would take action to detain the " “Cable Innovator” " until a licence was obtained or the vessel permanently left Canadian waters. Other correspondence also clearly indicated the risk of prosecution. Thus, the dispute as to the

interpretation of s 2(1)(

f) of the Coasting Trade Act and its application to the standby activities of the " “Cable Innovator” " is a live dispute and Transport Canada indicated that if Global Marine failed to comply or to leave Canada, which it did, the vessel would or could be prosecuted. Therefore, Global Marine’s interests were directly affected by Transport Canada’s administrative action. [ 84 ] To be clear, Transport Canada by its June 20, 2019 email, and prior communications, sought to compel Global Marine and the " “Cable Innovator” " to comply with Transport Canada’s

interpretation of s 2(1)(

f) of the Coasting Trade Act . That compliance action was successful as the " “Cable Innovator” " left Canadian waters, and by doing so, the vessel was no longer in non-compliance. However, in the result, other than by way of this application for judicial review, Global Marine has no way of challenging Transport Canada’s

interpretation – other than by having the " “Cable Innovator” " return to Canadian waters and resume standby activities without a coasting trade licence for that activity, thereby subjecting itself to prosecution. [ 85 ] In these circumstances, I am persuaded that the June 20, 2019 letter was an administrative action that had a direct negative effect on Global Marine’s rights and interests, and as such, is reviewable as a " “decision, order, act or proceeding” " by this Court. [ 86 ] Nor do I agree with the Minister’s submission that if the June 20, 2019 email is a reviewable decision then so too were Transport Canada’s prior communications, and on that basis, that Global Marine is now out of time to seek judicial review of the prior decisions.

As discussed above, the June 20, 2019 decision reflected an assessment by Transport Canada taking into consideration the invited submissions made by Global Marine. It was a new and final decision. ISSUE: Was Transport Canada’s

interpretation of s 2(1)(

f) of the Coasting Trade Act reasonable? i.

Interpretation of s 2(1)(

f) Global Marine’s position [ 87 ] Global Marine submits that Transport Canada’s

interpretation of s 2(1)(

f) of the Coasting Trade Act is untenable when viewed in the context of the modern rules of statutory construction. This is because Transport Canada’s

interpretation is inconsistent with the ordinary meaning of " “marine activity of a commercial nature” " , it is irreconcilable with the context and scheme of the Coasting Trade Act and with its purpose, and because Transport Canada’s

interpretation would produce absurd results. Global Marine is also of the view that the decision is inconsistent with Transport Canada’s past practice. [ 88 ] As to the ordinary meaning of " “marine activity of a commercial nature” " , Global Marine argues that the essential issue is whether the " “Cable Innovator” " is undertaking a marine activity while on standby.

It concedes that the standby activities of the " “Cable Innovator” " are commercial, but submits that " “marine” " qualifies " “activity” " and that the ordinary meaning of activity is " “a condition in which things are happening or being done” " or " “an action taken in pursuit of an objective”.

" As such, the " “Cable Innovator” " on standby in Victoria Harbour is engaged in a static activity, which is not, in and of itself, directed towards accomplishing a purpose. [ 89 ] Global Marine also submits in order to determine if there exists any valid reason to depart from the ordinary meaning of s 2(1)(f), the Court must consider the entire context and scheme of the Coasting Trade Act . Transport Canada’s

interpretation is inconsistent with the other activities listed under ss 2(1)(a)-(

e) of the Coasting Trade Act and is therefore contrary to the limited class rule ( ejusdem generis ) of statutory

interpretation. According to Global Marine, the specific types of activities listed in ss 2(1)(a)-(

e) all belong to a class of operational marine activities, marked by defined beginning and end, undertaken to complete a specific task, which corresponds with Global Marine’s ordinary meaning

interpretation. Global Marine similarly argues that the exceptions to s 3(1) in the Coasting Trade Act confirm that coasting trade is only meant to refer to operational marine activities. [ 90 ] Global Marine also submits that Transport Canada’s

interpretation of s 2(1)(

f) is contrary to the purpose of the Coasting Trade Act , which is largely protectionist, reserving certain marine activities of a commercial nature for Canadian ships. Referencing HJ Darling’s Report of Inquiry on the Coasting Trade of Canada and Related Marine Activity (Ottawa: Canadian Transport Commission, 1970) ( " “Darling Report” " ), Global Marine submits that this report specifically contemplated that the definition of ‘other marine activities’ should not be all-inclusive. Global Marine submits that Transport Canada’s

interpretation dissociates the meaning of " “marine activity of a commercial nature” " from the purpose of the Act because, when no work is being done within Canadian waters or above the continental shelf of Canada, no activity falls within the Act’s purpose. The purpose of the Coasting Trade Act is only to protect work in Canadian waters. The " “Cable Innovator” " did not undertake any such work and the scope of coasting trade cannot be extended beyond the purpose of the Act. [ 91 ] Finally, Global Marine submits that Transport Canada’s

interpretation would produce absurd results because, if sitting idly was a marine activity of a commercial nature, then this would necessitate the acquisition of a C48 license even for ships performing activities that were otherwise exempt from the licencing requirements whenever they sat idly on standby waiting for those exempt activities to resume. Or, it would result in a foreign flag ship trading internationally needing to obtain a C48 licence if it was delayed while in Canada.

Further, if being on standby is in and of itself a marine activity, a Canadian ship would always be available and suitable to perform that activity — even if they could not perform related contractual obligations. This would cause significant problems in obtaining C47 temporary admissions and C48 licences for foreign ships like the " “Cable Innovator” " . Transport Canada’s position [ 92 ] Transport Canada also addresses the textual, contextual, and purposive

interpretation of the Coasting Trade Act . It submits that Global Marine’s approach to textual

interpretation is dissective and fails to treat the phrase " “marine activity” " as a phrase, clause or as a provision as a whole. Transport Canada submits that the meaning of activity in the Coasting Trade Act does not require movement from one place to another. Further, while the standby activity of the " “Cable Innovator” " is stationary, it does involve activity as it is crewed, fueled and in a position to respond on short notice. Its state of operational readiness is at odds with Global Marine’s assertion that the vessel is idle, which is defined as, " “not occupied or employed” " .

And, by its very nature, the standby activity of the " “Cable Innovator” " is a marine activity. Further, this Court has, in obiter , previously given support to the meaning of " “marine activity of a commercial nature” " that includes stationary activities ( Berhad v Canada , 2004 FC 501 at para 84 ( " “ Berhad ” " )). [ 93 ] Nor does the Coasting Trade Act require that a marine activity of a commercial nature have a defined beginning and end, and in any event, in this circumstance the beginning and end of the standby activity is the term of the NAZ Agreement.

While Global Marine seeks to limit the meaning of s 2(1)(

f) on the basis of ss 2(1)(a)-(e), the Act states that coasting trade includes " “any other marine activity of a commercial nature”. " The use of the word " “any” " without restriction broadens the scope of what may be considered a " “marine activity” " . Transport Canada submits that by virtue of the state of operational readiness of the " “Cable Innovator” " , which is inextricably linked to its contractual marine cable repair operations, the vessel is engaging in a marine activity of a commercial nature.

While that activity is static, it is not passive, and it is clearly directed towards a purpose – the accomplishment of the vessel’s cable maintenance and repair operations. [ 94 ] Transport Canada submits that a contextual and purposive analysis of the Coasting Trade Act includes the legislative history of the Coasting Trade Act , which demonstrates that the definition of " “coasting trade” " was purposefully expanded. Further, that the overarching policy objective of the Act is to encourage commercial marine activity within Canadian waters by Canadian ships.

Only where the CTA has determined that there is no Canadian ship suitable and available to provide the service or perform the activity described in a C47 application will a foreign ship be eligible to obtain a coasting trade licence. Transport Canada disputes that there is a distinction between activity and service described in the C47 application made by Global Marine in 2016, and submits that this is unsustainable when reference is had to the Act’s purpose and the requirement, set out is s 4(1)(

a) and s 5(1)(a), that no Canadian ship is suitable and available to provide the service or perform the activity described in the application. A purposeful analysis supports a definition of " “any other marine activity of a commercial nature” " as including a service integral to an activity. [ 95 ] Finally, Transport Canada submits that the " “Cable Innovator” " has largely been on standby in Victoria Harbour since 2016. This is its default position, except when undertaking cable repairs, and it is a core aspect of its contractual obligations. This long-term

operational circumstance distinguishes its operations from the circumstance of a foreign flag internationally trading vessel that may bedelayed in port for only a short time. Further, the standby activities of the "“Cable Innovator”" are inextricably linked to, and facilitate,its cable repair work and therefore constitute a marine activity of a commercial nature. On this basis, no absurdity arises from TransportCanada’s

interpretation of s 2(1)(f). Analysis [96] The Supreme Court has stated, on multiple occasions, how statutory

interpretation is to be approached: [33] The question is one of statutory

interpretation and the object is to seek the intent of Parliament by reading the words ofthe provision in their entire context and according to their grammatical and ordinary sense, harmoniously with the schemeand object of the Act and the intention of Parliament (E. A.

Driedger, Construction of Statutes (2nd ed. 1983), at p. 87,quoted in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21)… (Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 33; also see Rizzo & Rizzo ShoesLtd (Re), [1998] 1 SCR 27, (SCC) at para 21; Canada (Attorney General) v Thouin, 2017 SCC 46 at para 26; CanadianBroadcasting Corp v SODRAC 2003 Inc, 2015 SCC 57 at para 48; Vavilov at para 117). [97] The Supreme Court of Canada in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 addressed how areviewing court is to assess the reasonableness of an administrative decision based on statutory

interpretation: [40] The administrative decision maker “holds the interpretative upper hand” (McLean v. British Columbia (SecuritiesCommission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 40). When reviewing a question of statutory

interpretation, areviewing court should not conduct a de novo

interpretation, nor attempt to determine a range of reasonable

interpretationsagainst which to compare the

interpretation of the decision maker. “[A]s reviewing judges, we do not make our ownyardstick and then use that yardstick to measure what the administrator did” (Delios v. Canada (Attorney General), 2015FCA 117, 100 Admin. L.R. (5th) 301, at para. 28, quoted in Vavilov, at para. 83). The reviewing court does not “ask itselfwhat the correct decision would have been” (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, atpara. 50, quoted in Vavilov, at para. 116).

These reminders are particularly important given how “easy [it is] for a reviewingcourt to slide from the reasonableness standard into the arena of correctness when dealing with an interpretative issue thatraises a pure question of law” (New Brunswick Liquor Corp. v. Small, 2012 NBCA 53, 390 N.B.R. (2d) 203, at para. 30). … [42] Where the meaning of a statutory provision is in dispute, the administrative decision maker must demonstrate in theirreasons that they were alive to the “essential elements” of statutory

interpretation: “the merits of an administrative decisionmaker’s

interpretation of a statutory provision must be consistent with the text, context and purpose of the provision”(Vavilov, at para. 120). Because those who draft statutes expect that the statute’s meaning will be discerned by looking to thetext, context and purpose, a reasonable

interpretation must have regard to these elements — whether it is the court or anadministrative decision maker tasked with the interpretative exercise (Vavilov, at para. 118). In addition to being harmoniouswith the text, context and purpose, a reasonable

interpretation should conform to any interpretative constraints in thegoverning statutory scheme, as well as interpretative rules arising from other sources of law. In this case, the AppealsOfficer’s

interpretation was constrained by interpretative rules within the Code, the

Interpretation Act, R.S.C. 1985, c. I-21,and common law rules of statutory

interpretation. (Also see Vavilov at paras 115-124) [98] The issue in this matter is whether the standby service of the "“Cable Innovator”" falls within the definition of "“coasting trade”"under s 2(1)(

f) of the Act: (

f) the engaging, by ship, in any other marine activity of a commercial nature in Canadian waters and, with respect to watersabove the continental shelf of Canada, in such other marine activities of a commercial nature that are in relation to theexploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada;(cabotage) [99] Here, Global Marine concedes that the standby service of the "“Cable Innovator”" is commercial in nature, given that an annual feeis paid under the NAZ Contract whether or not the vessel is mobilized to provide repair or maintenance services.

Thus, morespecifically, the question is whether Transport Canada reasonably found that the standby services fall within the scope of the phrase "“inany other marine activity”". [100] By way of factual background, it is of note that when making the C47 application, Global Marine in its accompanying letter statedthat it was applying to allow 24/7 standby in Canada to be able to quickly mobilize to conduct repairs. Further, that the "“CableInnovator”" was to be "“based on permanent standby in Victoria”", being a favourable position from where the vessel is able to attendcables in Canada and the United States.

Additionally, the cable owners have a maintenance contract in place to ensure the provision ofspecialized maintenance and repair services of a specialist dedicated vessel and all dedicated support functions of the contractor, such

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