BRITISH COLUMBIA FERRY v. MARINE WORKERS’ UNION, 2022 FC 209

Date: 20220217 Docket: T-655-20 Citation: 2022 FC 209 Ottawa, Ontario, February 17, 2022 PRESENT: The Honourable Mr. Justice Pamel IN THE MATTER OF THE CANADA SHIPPING ACT, 2001 , SC 2001, c 26, THE MARINE PERSONNEL REGULATIONS , SOR/2007-115, BETWEEN: BRITISH COLUMBIA FERRY AND MARINE WORKERS’ UNION Applicant and CANADA (MINISTER OF TRANSPORT) AND BRITISH COLUMBIA FERRY SERVICES INC. Respondents JUDGMENT AND REASONS Table of Contents I. Overview 2 II. Facts 5 III. Standard of review and applicable principles and legislation 12 IV. Analysis 17 A. Preliminary issues 17

(1) Standing of the Union 17

(2) Concern that the Union’s voice is not being heard 17

(3) Whether the A Matrix is determinative 18

(4) BC Ferries’ failure to use Application Form B 20

(5) Continued discretion on the part of Transport Canada to direct live on-board evacuation and safety drills 20

(6) Relevance of the Island Class ferries’ safety policies and procedures 21

(7) Sufficiency of the record 24

(8) Transport Canada’s consideration of international instruments 24

(9) Summary of the elements of the MPR, the A Matrix and the Muster List 30 B. Issues raised by the Union 36

(1) Was it unreasonable for Transport Canada to decide that a five-person crew could conduct safe deck and engineering watches during emergencies as required by subparagraphs 207(4)(b)(

i) and (ii) of the MPR? 36

(2) Was it unreasonable for Transport Canada to decide that a five-person crew could perform specified emergency duties simultaneously as required by paragraph 207(4)(

d) of the MPR? 41

(3) Was the determination of sufficient crew to undertake certain required tasks unreasonable? 46

(4) Was it unreasonable for Transport Canada to decide that a five-person crew could perform the evacuation procedures required by the LSER as set out in subsection 207(5) of the MPR? 57 V. Costs 61 ANNEX 64 I. Overview

[ 1 ] In January 2020, British Columbia Ferry Services Inc. [BC Ferries], a publicly owned Canadian company and Canada’s largest ferry operator, took delivery in Vancouver of two newly built Island Class ferries, the Island Aurora and the Island Discovery [collectively, the Island Class ferries], as part of its fleet renewal program to replace two of its aging passenger and vehicle ferries operating on routes within the coastal waters of British Columbia.

As Canadian flagged vessels registered in Victoria, the Island Class ferries are subject to the provisions of the Canada Shipping Act, 2001 , SC 2001, c 26 [ Act ], and its regulations, in particular the Marine Personnel Regulations , SOR/2007-115 [ MPR ], which, along with the Act , require a vessel to be staffed with a sufficient number of competent crew for its safe operations and to have issued a safe manning document [SMD] specifying the minimum complement of crew—minimum safe manning levels [MSM levels]—as well as the remaining information set out in paragraph 202(3)(

b) of the MPR . [ 2 ] In March 2020, BC Ferries applied to Transport Canada for two SMDs for each of the new ferries, along with a proposal on MSM levels; two SMDs were requested for each ferry so as to accommodate fluctuations in passenger levels throughout the year. Transport Canada may issue multiple SMDs for a vessel setting different MSM levels to reflect the varying circumstances in which the vessel operates, such as the number of passengers or the nature of operations.

BC Ferries’ application for a Class A SMD proposed a minimum complement of six crew for up to 394 passengers—a total of 400 people on board—while the application for a Class B SMD proposed five crew for up to 220 passengers—a total of 225 people on board.

In April 2020, Transport Canada issued to BC Ferries a Class A SMD [the A Licence] with an MSM level of seven crew (one more than what BC Ferries proposed) when up to 400 people are on board, and a Class B SMD [the B Licence] with an MSM level of six crew (again one more than what BC Ferries proposed) when up to 225 people are on board. [ 3 ] Following discussions between BC Ferries and Transport Canada—discussions which included the Canadian Ferry Association—on May 19, 2020, BC Ferries submitted a new application for a Class C SMD for the Island Class ferries, this time proposing an MSM level of five crew members (a master, a mate, an engineer, a deckhand and a single rating) for up to 150 people on board, which Transport Canada assessed and issued on May 25, 2020 [the C Licence] after concluding that a complement of five crew members met the standards set out in the MPR with up to 145 passengers on account of the Island Class ferries’ " “automation, modern technology, alternative arrangements and additional equipment.” " Transport Canada also advised BC Ferries that it was required to ensure that the Island Class ferries comply with all requirements of the MPR and the Fire and Boat Drills Regulations , SOR/2010-83 [ FBDR ], " “at all times, particularly the effectiveness of the muster lists in meeting these requirements” " .

The two aging passenger and vehicle ferries which the Island Class ferries were meant to replace regularly sailed with a minimum complement of six and seven crew respectively. [ 4 ] The British Columbia Ferry and Marine Workers’ Union [Union]—the trade union certified under the British Columbia Labour Relations Code , RSBC 1996, c 244 , to represent, inter alia , the crew aboard the Island Class ferries—seeks judicial review of the decision to issue the C Licence to BC Ferries on the grounds that the Island Class ferries cannot, with a complement of five crew members, meet several of the BC Ferries’ fleet-and vessel-specific safety operations policies [the safety policies and procedures], including bridge watch, passenger control, rescue operations and firefighting, which are part of BC Ferries’ Safety Management System [SMS]—a system-based process to organize information for the management and mitigation of risk developed as part of the International Management Code for the Safe Operation of Ships and for Pollution Prevention [ISM Code]—nor the applicable statutory and regulatory requirements, including the MPR . [ 5 ] I have not been persuaded that the decision by Transport Canada to issue the C Licence was unreasonable.

I am being asked to reassess the evidence and substitute my own judgment for that of an experienced and professional five-member panel at Transport Canada which, after not allowing an MSM level of five crew for up to 220 passengers, reviewed the material and determined that an MSM level of five was sufficient with up to 145 passengers on board; this I will not do and I am therefore dismissing the present application for judicial review. II.

Facts [ 6 ] Although they are Canadian vessels (vessels registered in Canada and flying the Canadian flag), the Island Class ferries are not Safety Convention vessels—vessels to which the International Convention for the Safety of Life at Sea [SOLAS] mandatorily applies (

section 2 of the Act ). Transport Canada is in the process of amending the Safety Management Regulations , SOR/98-348 , to phase in the adoption of SMSs in compliance with the ISM Code for, inter alia , Canadian vessels that are certified to carry more than 50 passengers, however, at the time of the decision to issue the C Licence, having an SMS in place was not mandatory for the Island Class ferries.

That said, given the nature of its operations, BC Ferries was “ahead of the game” and nonetheless voluntarily developed an SMS in compliance with the ISM Code—which was adopted as part of SOLAS and which sets international standards for the safe management and operation of vessels as well as for pollution prevention.

Under the ISM Code, an SMS must be established by or on behalf of the owners of a vessel, providing for the implementation of policies and procedures to achieve the safety management objectives set out in the ISM Code; the safety policies and procedures must be compiled into a comprehensive safety management manual. [ 7 ] As regards BC Ferries, its safety policies and procedures are contained in both a fleet operations manual [FOM], which applies to all vessels in the BC Ferries fleet, as well as a vessel specific manual [VSM], which is for each individual vessel yet the safety policies and procedures therein are consistent with those found in the FOM.

The safety policies and procedures are regularly reviewed and updated in response to internal audits (including spot checks) or changes in the legal and regulatory environment.

External audits by the vessels’ classification society also regularly take place in compliance with the SMS for each vessel. [ 8 ] Prior to March 2020, Transport Canada’s methodology for determining MSM levels used a singular approach and a common SMD application form regardless of the size or type of vessel [the previous MSM assessment process]; the process would take into account certain established generic characteristics of the vessel and would determine the MSM level based on a prescriptive scoring matrix in conjunction with the observations of, and assessment by, a Transport Canada marine safety inspector of live on-board boat and fire drills [evacuation and safety drills] conducted by the crew.

Somehow the process was found to be rigid given the different types of vessels and different equipment on board, and this one-size-fits-all approach proved difficult when considering automatization and modern technology aboard vessels and a vessel’s SMS in the determination of safe manning levels. [ 9 ] Following the issuance of a final research report entitled “Issuance of Safe Manning Documents for passenger ferries”, in November

2018, Transport Canada announced a review of its methodology for determining MSM levels at a Canadian Marine Advisory Council [CMAC] meeting. The announcement was made in conjunction with the release to marine industry stakeholders of a draft discussion paper with the proposed changes.

Following submissions and comments from various stakeholders, including those of the Union, as well as stakeholder discussion and feedback sessions and workshops at subsequent national and regional CMAC meetings in 2019 and early 2020, on March 19, 2020, Transport Canada adopted its new SMD application process and guidelines for the assessment of a vessel’s MSM level [the new MSM assessment process].

This new process involves a risk-based approach to MSM level assessment and modifies procedural aspects of the previous MSM assessment process so as to allow owners to submit more detailed and vessel-specific information at the start of the application process—for example, details of advanced automation, modern technology, alternative arrangements and additional equipment including advanced emergency features.

Another procedural change was that Transport Canada no longer required live on-board evacuation and safety drills by the crew when assessing a vessel’s MSM level; although actual demonstration of automation and additional equipment may warrant higher or lower crew numbers, there was no longer to be a practical demonstration of evacuation and safety drills, and a review of the muster list—as provided in the FBDR , being amongst other things, a description of the duties assigned to crew members and to be performed by them in relation to the passengers during an emergency— submitted along with the application was to be used to validate the exercise of the drills, a process called “validation through muster list”. [ 10 ] The new MSM assessment process includes five new SMD applications instead of one, each with its own customized evaluation form and matrix (application forms A to E).

Application Form A is for Category 1 vessels (being either Safety Convention vessels or vessels with an SMS) and would be reviewed under the new MSM assessment process by a five-member national safe manning team [SMT]—a panel comprised of Transport Canada marine safety inspectors from the National Capital Region and the regions—which reviews the application material and independently assesses the proposed MSM level to determine compliance with the MPR .

Review of application forms B through D is to be undertaken only by regional Transport Canada marine safety inspectors and is designed for non- Safety Convention vessels with no established SMS, including fishing vessels and smaller cable ferries. Application Form E is for renewals of SMDs where there are no changes to certain prescribed elements. Under the new MSM assessment process, owners propose an MSM level within their SMD application and must satisfy Transport Canada that the crew is competent and the number of crew proposed is sufficient to perform all safety functions, including in emergencies.

As mentioned earlier, Transport Canada did not accept BC Ferries’ proposed MSM levels for the A and B Licences, but accepted the proposed crew complement of five for the C Licence when passenger levels are maintained at no more than 145 people. [ 11 ] The Union did not challenge Transport Canada’s adoption of the new MSM assessment process implemented on March 19, 2020. [ 12 ] For all of its Island Class ferries’ SMD applications, BC Ferries used Application Form A because the vessels were operating under an SMS; BC Ferries wanted Transport Canada to determine MSM levels in recognition of the vessels’ special automated features and modern technology, including automatically activated or remotely operated fixed firefighting equipment such as a drencher system and water mist systems in the machinery and crew spaces that can be activated remotely from the central control station on the bridge, from the technical space on deck level 1, as well as from the engineering room—with control transferrable from each console—a car deck deluge system over the covered

section of the car decks, fixed fire monitors for the open space car decks, with closed circuit television cameras, smoke and heat detectors throughout the vessel with all spaces also fitted with passive structural fire protection, and a marine evacuation system [MES] which can evacuate passengers via slides to inflatable life rafts—advancements in technology that reduce the number of crew members needed to perform certain tasks in emergency situations. [ 13 ] In support of its Class A and B SMD applications submitted on March 3, 2020—two weeks prior to the formal implementation of Transport Canada’s new MSM assessment process but nonetheless assessed in accordance with the new process—BC Ferries also submitted, along with the completed Application Form A, a series of documents including a description of the automated equipment and features of the vessels and of the other regulated equipment, a muster list consisting of, for the Class A application, six crew for up to 394 passengers, and for the Class B application, five crew for up to 220 passengers, personalized duty tabs for the crew, BC Ferries’ Document of Compliance [DOC] which confirms that the company is operating its fleet of passenger ferries in compliance with the ISM Code, evidence of consideration of the guidelines set out in Annex 1 and 2 of the International Maritime Organization [IMO] Resolution A.1047(27)—the Principles of Minimum Safe Manning (which updates IMO Resolution A.890(21) and is substantially similar to International Labour Organization [ILO] Resolution A.1047(27))—[IMO Resolution A.1047(27)], an emergency response tabletop exercise [tabletop exercise] undertaken as part of BC Ferries’ internal risk assessment of minimum safe manning levels conducted in accordance with BC Ferries’ SMS, the Island Class ferries’ Shipboard Oil Pollution Emergency Plan, the vessels’ agreements with the local oil pollution response organization and detailed plans for the Island Class ferries.

BC Ferries’ internal risk assessment of minimum safe manning levels culminated in the preparation of the Island Class Minimum Safe Manning Risk Assessment Report [MSM Risk Assessment Report], which was also submitted once finalized on April 3, 2020, and following the request of Transport Canada to do so.

I should mention that although the DOC was issued in October 2019—prior to the Island Class ferries becoming operational—the safety management certificates [SMC] for the Island Class ferries verifying their compliance with the ISM Code were issued after the decision to issue the C Licence: the SMC for the Island Discovery was issued in May 2020 and the SMC for the Island Aurora was issued in June 2020. [ 14 ] Upon receipt of BC Ferries’ Application Form A along with the supporting documents, Transport Canada assembled its five-member SMT to process the applications.

The SMT used a document entitled Minimum Safe Manning Evaluation Form for Category A Vessels [the A Matrix]—a methodical option-driven series of tables and notes with references to the MPR—to perform its assessment and determination of the Island Class ferries’ MSM levels. Ultimately, the vessels’ MSM level is the highest number of crew determined to operate in any one of the four matrix sections.

There is no issue as between the parties that, regardless of the application form submitted to obtain an SMD, the relevant matrix used by Transport Canada is not intended to be a public document or a formal set of reasons; the matrices are internal documents that are completed and used by Transport Canada as a tool to determine whether the requirements of the MPR are met. Moreover, the MSM level requirements under the MPR are only a minimum threshold; owners may implement higher manning levels when appropriate.

Subsection 82(2) of the Act requires a vessel’s master to ensure that the vessel operates with enough crew to safely undertake its intended voyage; higher staffing levels may be set when necessary in specific circumstances. In the end, as stated, Transport Canada proceeded to issue to BC Ferries in April 2020 an A Licence with an MSM level of seven crew (one more than what BC Ferries proposed) and a B Licence with an MSM level of six crew (again one more than what BC Ferries proposed), for up to 400 and 225 people on board, respectively.

[ 15 ] Specifically as regards its application for its Class C SMD in May 2020, BC Ferries submitted a freshly completed Application Form A along with a revised muster list [the Muster List] reflecting five crew for up to 145 passengers; the supporting documents submitted earlier for the A Licence and B Licence remained on file and were included in the assessment process for the Class C SMD.

As stated, Transport Canada issued the C Licence to BC Ferries on May 25, 2020, the decision of which is the subject of the present application for judicial review. [ 16 ] It is to be noted that BC Ferries’ applications for SMDs did not include any safety policies and procedures, whether fleet-or vessel- specific. Concurrently with the preparation of the MSM Risk Assessment Report in early April 2020, a team was set up by BC Ferries which included a senior master and chief engineer to begin preparing the initial draft of the Island Class ferries’ VSMs.

The Union’s record before me contains VSM documents for the Island Class ferries updated to June 7, 2020. The evidence of BC Ferries confirms that those VSM documents were initially prepared on the basis of the Island Class ferries obtaining their A Licence and B Licence and that those documents are in the process of being further updated to take into account the issuance of the C Licence.

In any event, what is important to note is that no Island Class ferries safety policies and procedures were before, or considered by, the SMT at the time of the decision to issue the C Licence to BC Ferries. [ 17 ] The Union’s principal argument is that the Muster List—what the Union says represents the minimum crew requirements for compliance with the various parts of the MPR—does not match up to what Transport Canada determined to be the appropriate staffing levels. In short, the Union asserts that BC Ferries would not be able to (

i) maintain the required deck and engineering watches during emergencies, (ii) perform specified emergency duties simultaneously as required by the regulations, and (iii) perform evacuation procedures, with a complement of five crew on board the Island Class ferries. III. Standard of review and applicable principles and legislation [ 18 ] There is no dispute between the parties that reasonableness is the applicable standard of review. I agree.

As set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ], when assessing whether a decision is reasonable, it is not simply a question of whether the decision falls within a range of possible outcomes, but rather " “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” " ( Vavilov at paras 83 and 99 ; Montreal (City) v Old Port of Montreal Corporation Inc. , 2021 FC 806 at para 35 ).

The standard of reasonableness would also apply to Transport Canada’s

interpretation of its home statute—the Act and its regulations—in a manner that reflects international law. As was recently set out by the Federal Court of Appeal in Canada (Attorney General) v Kattenburg , 2021 FCA 86 [ Kattenburg ], the principles of international law, should they bear on the issue to be decided, are " “merely part of the context that can inform the

interpretation” " of the applicable legislation ( Kattenburg at paras 5 and 6 ). In addition, the review of an administrative decision cannot be divorced from the institutional context in which the decision was made, and in conducting reasonableness review, the reviewing judge should be attentive to the application of specialized knowledge by the decision-makers; " “[t]his demonstrated experience and expertise may also explain why a given issue is treated in less detail” " ( Vavilov at paras 91 and 93 ).

Moreover, assessments and determinations " “legitimately drawn from the expertise or specialization of administrative decision-makers, all other things being equal, similarly may be unconstrained and may be harder to set aside” " ( Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada , 2020 FCA 100 at para 30 ). [ 19 ] As stated, the decision to issue the C Licence did not include formal reasons; following the assessment by the SMT of BC Ferries’ application, the C Licence was simply issued as proposed by BC Ferries.

In discussing the standard of review in the absence of reasons, the Supreme Court in Vavilov provided the following guidance: [136] Where the duty of procedural fairness or the legislative scheme mandates that reasons be given to the affected party but none have been given, this failure will generally require the decision to be set aside and the matter remitted to the decision maker: see, e.g., Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine , at para. 35.

Also, where reasons are provided but they fail to provide a transparent and intelligible justification as explained above, the decision will be unreasonable. In many cases, however, neither the duty of procedural fairness nor the statutory scheme will require that formal reasons be given at all : Baker , at para. 43. [137] Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided .

This will often occur where the decision- making process does not easily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders a decision by holding a vote: see, e.g., Catalyst ; Green ; Trinity Western University . However, even in such circumstances, the reasoning process that underlies the decision will not usually be opaque.

It is important to recall that a reviewing court must look to the record as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision : Baker , at para. 44. For example, as McLachlin C.J. noted in Catalyst , “[t]he reasons for a municipal bylaw are traditionally deduced from the debate, deliberations, and the statements of policy that give rise to the bylaw”: para. 29. In that case, not only were “the reasons [in the sense of rationale] for the bylaw . . . clear to everyone”, they had also been laid out in a five-year plan: para. 33.

Conversely, even without reasons, it is possible for the record and the context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason, as, for example, in Roncarelli . [138] There will nonetheless be situations in which no reasons have been provided and neither the record nor the larger context sheds light on the basis for the decision. In such a case, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable.

But it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process . This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape. [Emphasis added.]

[ 20 ] To begin with, it may be easiest to set out what this case is not: this is not a case where the duty of procedural fairness or the legislative scheme requires that reasons be given or a case where a vote is determinative of the decision, nor is it a case where I cannot discern how Transport Canada construed the relevant legislation ( Kattenburg at para 16 ).

I accept that the record does not explicitly address the reasoning of the SMT behind the application of the MPR requirements to the BC Ferries’ application for a Class C SMD, however, the approach taken by all parties in their submissions in assessing the reasonableness of the decision to issue the C Licence was to begin with the review of the completed A Matrix as the assessment tool used to conduct the SMT’s internal deliberations and discussions.

When I pointed out to counsel for Transport Canada that the Court must still be able to “connect the dots” in the SMT’s reasoning leading to the decision to issue the C Licence, counsel argued that the A Matrix serves that purpose by showing on a point-by- point basis how the regulations were complied with ( Komolafe v Canada (Minister of Citizenship and Immigration) , 2013 FC 431 at para 11 ; Vavilov at para 97 ).

The Union took no issue with this approach, although it asserted that such an approach actually establishes that the C Licence is not in compliance with the governing regulations. [ 21 ] Accordingly, nor is this a case similar to Catalyst Pharmaceuticals, Inc v Canada (Attorney General) , 2021 FC 505 [ Catalyst Pharmaceuticals ], where Madam Justice St-Louis was recently called upon to determine the standard of review in the absence of formal reasons yet was faced with " “two barriers to conducting a typical reasonableness review” " : there were no reasons provided by the decision-maker (in that case the Minister of Health) in coming to her decision to issue a notice of compliance with respect to a pharmaceutical company’s new drug, and (more importantly as regards the matter before me) the record itself shed no light upon the Minister’s

interpretation of the relevant statutory provisions. In the matter before me, I am satisfied that the record does shed at least some light upon the SMT’s

interpretation of the requirements of the MPR and on the reasons why Transport Canada decided in the way it did ( Leahy v Canada (Citizenship and Immigration) , 2012 FCA 227 at paras 36 to 42 ). [ 22 ] In any event, the decision to issue the C Licence is the result of the assessment by a regulatory body with specialized knowledge and expertise in the complex area of navigation and shipping, whose role it is to review what is tantamount to a permit or licence request and make certain that the applicable standards for the safe operation of vessels required by the governing statute and regulations have been respected.

Although the issuance of an SMD is mandatory for the Minister upon receipt of an application (subsection 202(3) of the MPR ), the determination of MSM levels pursuant to

section 207 of the MPR is discretionary and subject to the assessment by Transport Canada that compliance with subsections 207(3) to (6) of the MPR has been met—this requires, I would add, expertise in ship operations and the application of the principles of good seamanship by the Transport Canada marine safety inspectors. Although the record is limited, I find that it does assist in understanding the reasons for the decision to issue the C Licence ( Stemijon Investments Ltd v Canada (Attorney General) , 2011 FCA 299 at para 36 ). [ 23 ] In addition, I have reproduced in the annex to my decision the relevant sections of the Act and the MPR;

section 207 of the MPR in particular sets out the four MSM level scenarios for the determination of the minimum complement requirements for ship operations. The main thrust of the Union’s arguments is that a minimum complement of five crew cannot meet the emergency response requirements of subsection 207(4) of the MPR . IV. Analysis A. Preliminary issues

(1) Standing of the Union [ 24 ] I should first mention that no issue was taken by the respondents with respect to the Union’s standing in the present application for judicial review; in fact, the Minister accepts that the Union does have standing. For my part, I see no reason to question it.

(2) Concern that the Union’s voice is not being heard [ 25 ] In its affidavits in support of its position, the Union takes issue with what it sees as the decreased involvement of its members in the determination of MSM levels for vessels under the new MSM assessment process as well as what it claims is Transport Canada’s failure to take into account seafarers’ views when it comes time to assess the application of safety regulations; in particular, the Union has argued that Transport Canada should make all applications for an SMD a matter of public record, open for review and subject to submissions from all those at interest, in particular the unions representing seafarers.

The Union points to the ILO Maritime Labour Convention, 2006 [MLC 2006]—included in

Schedule 1 of the Act , thus enabling Transport Canada to implement provisions of the MLC 2006 through the MPR (subsection 29(1) and paragraph 35(1)(

d) of the Act)—and in particular Guideline B2.7.1 of MLC 2006 to support its argument that it has a right to participate in the operation of the " “machinery for the investigation and settlement of complaints or disputes concerning the manning levels on a ship.” " [ 26 ] I am sympathetic to the Union’s concerns; seafarers are at the forefront of emergency response aboard vessels and are instrumental in safeguarding the well-being of passengers and all those on-board.

However, their level of involvement in the regulatory process, in particular the determination by Transport Canada of MSM levels for vessels, is not at issue before me; as mentioned, the Union has not challenged Transport Canada’s new MSM assessment process before this Court. The only issue therefore before me in the present application for judicial review is whether, in line with the new MSM assessment process, the decision to issue the C Licence was unreasonable given the applicable regulatory landscape.

(3) Whether the A Matrix is determinative [ 27 ] During its submissions before me, BC Ferries put much emphasis on the proposition that the new MSM assessment process is a “risk-based assessment”. Under this approach, the completed A Matrix would not be determinative as to MSM levels as it would only contain information which the SMT would then consider to determine whether an applicant’s proposed MSM levels were commensurate with the risks identified in the application. I do not see how an argument which goes to undermine the determinative value of the A

Matrix assists BC Ferries. If the A Matrix is not determinative, and somehow other principles or broader policy considerations play into the SMT’s assessment of MSM levels, then it is imperative that such considerations be part of the record. On this issue, I prefer the position set out by Transport Canada, to wit , that the A Matrix prepared by the five-member SMT is determinative in the assessment of the MSM level for a particular vessel.

I would think that any policy considerations or the application of the principles of good seamanship during the SMT’s internal deliberations and discussions have already gone into the determination reflected in the A Matrix; the A Matrix is the result of those deliberations and discussions. The SMT’s determination of MSM levels is a function of the applicable regulatory requirements and not one made in the abstract.

Nothing in the MPR suggests that the SMT can disregard the MPR requirements and base its decision only on the risks posed by a proposed MSM level; in the end, no risk-based approach can act as an override of regulatory compliance.

In addition, and from the perspective of a reviewing court, if the completed A Matrix is not determinative of the SMT’s decision to issue, in this case, the C Licence, Transport Canada risks its decision being viewed as one whereby it is looking to immunize its decision by withholding documents and information necessary for judicial review or by failing to give explanations and rationales for decision-making in application of the " “‘trust us, we got it right’ approach” " ( Canada (Citizenship and Immigration) v Canadian Council for Refugees , 2021 FCA 72 at para 105 [ Canadian Council ]); that may not end well for Transport Canada.

No level of deference by a reviewing court on account of the purported expertise of a decision-maker such as Transport Canada can shield its decisions from judicial review, and defending the reasonableness of a decision to issue an SMD which does not match up with the assessment tool matrices that are part of the record then becomes precarious and an arduous task at best.

In arguing that the A Matrix was not determinative, BC Ferries would have me believe that it is not an appropriate document to evaluate the SMT’s assessment of the MSM level for the Island Class ferries and ultimately the decision to issue the C Licence. If it were true that the information contained in the A Matrix is just that, information, and that it is not determinative of the SMT’s assessment, the Court would be left with only supposition and arguments to perform its own duties on judicial review.

I note in the evidence that three members of the SMT must be in agreement with the assessment of the MSM level for the SMD to be issued. If at least three members of the SMT cannot reach a consensus, the matter is escalated to, ultimately, the Director General of Marine Safety and Security of Transport Canada for a final decision, at which point the record should be sufficient to allow a reviewing court to “connect the dots” and determine if the final decision with respect to the issuance of an SMD was " “transparent, intelligible and justified” " ( Vavilov at para 15 ).

(4) BC Ferries’ failure to use Application Form B [ 28 ] The Union argues that had BC Ferries used Application Form B—meant for non-Safety Convention vessels or vessels without an SMS—the process for the Class C SMD would have yielded an MSM level of seven crew for the Island Class ferries. That may be so, however, I fail to see how this argument assists the Union. BC Ferries did not use Application Form B, nor was it obliged to.

Rather, the company used Application Form A, triggering a review by a five-member panel of Transport Canada, and so as to be able to highlight the fact that the company was operating in accordance with an SMS and was ISM Code compliant, and that the vessels were equipped with automated safety and life saving equipment which reduced the need for the physical attendance of crew during every aspect of emergency response—aspects which would not have been part of the new MSM assessment process under Application Form B.

In the end, it was up to the SMT to assess how those elements factor into the determination of MSM levels for the vessels as called for by the governing regulations.

(5) Continued discretion on the part of Transport Canada to direct live on-board evacuation and safety drills [ 29 ] As mentioned, the new MSM assessment process no longer requires Transport Canada marine safety inspectors to witness live on- board evacuation and safety drills conducted by the crew, as this exercise was replaced by the “validation through muster list” process.

In fact, note 11 of the explanatory notes to the A Matrix indicates: " “There shall be no practical demonstration of a Boat and Fire Drill as the review of the Muster List should validate that exercise.” " That said, the explanatory notes to the A Matrix are meant to inform the marine safety inspectors who are completing the document but cannot fetter their discretion in the manner in which they assess MSM levels pursuant to the MPR .

I must agree with the Union that it remains within the discretion of Transport Canada to direct that such drills take place for MSM assessment if required and that the exercise of that discretion, one way or the other, may impact the reasonableness of its decision in respect of the issuance of an SMD.

The Union argues that it was not clear from the documents submitted by BC Ferries what the required minimum staffing of the Island Class ferries was to be, and thus Transport Canada should have nonetheless exercised its discretion and directed that on-board evacuation and safety drills be undertaken to validate the ultimate decision; not doing so, argues the Union, rendered the decision to issue the C Licence unreasonable.

It seems to me that it remains the burden of the Union to establish that the exercise of discretion by Transport Canada not to direct that on-board drills be conducted in this case was not only itself unreasonable, but also determinative in the decision to issue the C Licence. In this case, I have not been persuaded that the failure on the part of Transport Canada to conduct an evacuation and safety drill was unreasonable under the circumstances.

(6) Relevance of the Island Class ferries’ safety policies and procedures [ 30 ] Although no Island Class ferries FOM or VSM documents were before the SMT during the assessment of BC Ferries’ application for a Class C SMD, as stated, the record before me contains fleet-and vessel-specific safety policies and procedures updated to June 7, 2020, which, according to BC Ferries, are currently being updated to account for the newly issued C Licence.

Two issues arise in this case: first, the Union argues that as BC Ferries elected to use Application Form A, it was under an obligation to provide its safety policies and procedures at the same time because explanatory note 9 to the A Matrix instructs that all SMS documents be provided by the applicants. Accordingly, any decision under Application Form A which does not include SMS documents must therefore, argues the Union, be unreasonable.

The Union also points to the PowerPoint presentation of Transport Canada given during the lead-up to the formal implementation of the new MSM assessment process which specifies that any application using Application Form A “shall” be supported by SMS documents. To bolster its case, the Union points to the Transportation Safety Board of Canada [TSB] report on the incident involving the Island Queen III on August 8, 2017, to explain and highlight the background, importance and principal objectives of an SMS. I cannot agree with the Union.

As I stated earlier, the explanatory notes to the A Matrix—and, I would add, any PowerPoint presentation—cannot fetter the discretion of marine safety inspectors in the manner in which they assess MSM levels pursuant to the MPR , and here, I have not been shown any statutory or regulatory provisions requiring the submission of SMS documents as part of the

SMD application process. As is the case with the exercise of evacuation and safety drills, Transport Canada must be satisfied that the requirements of the MPR have been met; it continues to have discretion to insist upon up-to-date relevant SMS documents being submitted prior to an SMD being issued, and the failure to do so may be a factor in determining whether the decision to issue a particular SMD is reasonable.

However, it should be kept in mind that the safety policies and procedures do not set MSM levels for vessels; that determination is made by the governing authority—here Transport Canada—in conformity with regulatory requirements; a vessel’s safety policies and procedures may be developed as a consequence thereof.

In the end, the issue is whether it was unreasonable under the applicable legislative regime for Transport Canada to be satisfied that the characteristics of the Island Class ferries, including the equipment on board, its intended operations and the training of its crew, justified the issuance of the C Licence. Consequently, I have not been persuaded that the failure to provide FOM or VSM documents for the Island Class ferries as part of BC Ferries’ application for a Class C SMD, rendered the decision to issue the C Licence to BC Ferries unreasonable.

In any event, the Union conceded before me that if, in the normal course, there was a clearly articulated explanation by an applicant acceptable to Transport Canada confirming that the MPR were fully and clearly met, one would not need to submit SMS documents for the issuance of an SMD.

In this case, as I set out below, I have not been convinced that there was not a clear and complete explanation provided by BC Ferries to Transport Canada that the MPR were fully and clearly met; in fact, the A Matrix specifically confirms that the SMT was satisfied with compliance through, to a significant extent, the submissions of BC Ferries—I take it through the completed application form itself, the MSM Risk Assessment Report and the tabletop exercise in addition to the Muster List. [ 31 ] The second issue is the Union’s focus on inconsistencies between the VSM documents, which are part of its record, and the determinations of the SMT as reflected in the A Matrix.

A principal theme of the Union’s case is that the Island Class ferries cannot, with a complement of five crew, meet several of the safety policies and procedures of BC Ferries that were put before me. That may be so, however, that is of little relevance, as those documents were prepared on the basis of the A Licence and B Licence and, in any event, were not before the SMT at the time of the issuance of the C Licence.

In addition, the Union has not shown that the Island Class ferries’ safety policies and procedures fall within one of the recognized exemptions to the general rule that only the record that was before the administrative decision-maker is admissible on judicial review ( Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright) , 2012 FCA 22 at para 20 [ Association of Universities ]).

(7) Sufficiency of the record [ 32 ] I should also point out that Transport Canada refrained from submitting an affidavit from a member of the SMT addressing the deliberative process leading to the decision to issue the C Licence ( Association of Universities at paras 19 and 20 ; Shahzad v Canada (Citizenship and Immigration) , 2017 FC 999 at para 20 ). In fact, the A Matrix contains no information on what considerations were taken into account or what deliberations or discussions were undertaken by the SMT in arriving at its decision.

When the Union filed its notice of application, it requested all records of discussions and deliberations by Transport Canada relating to the MSM levels for the Island Class ferries pursuant to

section 317 of the Federal Courts Rules , SOR/98-106 ( Canadian Council at para 108 ). Transport Canada provided some of the requested documents, but claimed deliberative privilege on most of them; the Union decided not to challenge that claim.

(8) Transport Canada’s consideration of international instruments [ 33 ] The issue of whether Transport Canada had to consider international conventions in its assessment of MSM levels has opened up a larger debate on what constitutes an “emergency situation” under subsection 207(4) of the MPR . [ 34 ] Although it concedes that the Island Class ferries are non-Safety Convention vessels, the Union asserts that many of the regulations adopted under the Act reference international maritime conventions and standards and argues that the determination of the reasonableness of the decision to issue the C Licence must take such international instruments into consideration; where the applicable international instruments conflict with domestic legislation, the Union argues that the higher safety standard should prevail.

In support of its contention, the Union points to explanatory note 4 to the A Matrix, which states that

section 202 of the MPR requires any application for an SMD to include a proposal determined by following the guidelines set out in IMO Resolution A.1047(27). That may be so, however,

section 202 of the MPR only applies to Safety Convention vessels, which the Island Class ferries are not; explanatory notes cannot be treated as amendments to the Act .

In any event, the application for the Class C SMD included evidence that BC Ferries’ proposal for MSM levels was determined by following the guidelines set out in IMO Resolution A.1047(27), and I have not been shown by the Union where such guidelines have not been respected. [ 35 ] In addition, the Union asserts that sections 213 and 223 of the MPR , which integrate the Seafarers’ Training, Certification and Watchkeeping Code [STCW Code] adopted under the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 [STCW Convention], must be taken into consideration by Transport Canada when assessing MSM levels in emergency situations not covered under subsection 207(4); in such a case, subsection 207(3) of the MPR acts as a floor for the determination of minimum complement requirements.

The STCW Code then comes into play under subparagraph 207(3)(d)(i), which refers to

section 213, and subparagraph 207(3)(d)(ii), which refers to

section 223 of the MPR , and does not permit a reduction of watches during such emergency scenarios and does not allow the officer of the watch to take on additional duties. [ 36 ] Putting aside the application of subsection 207(2) of the MPR , the Union’s argument is predicated on there existing emergency situations which are not governed by subsection 207(4); the Union argues that a man overboard scenario is one such situation where the minimum complement set out in subsection 207(3) of the MPR would apply.

Transport Canada disagrees that subsection 207(3) applies to man overboard scenarios, but goes further to assert that the “emergency situation” to which subsection 207(4) applies is limited to emergencies such as fires on board or " “some other major event requiring passenger evacuation such as a collision or grounding.” " This would mean that minimum complement requirements under subsection 207(4) are not triggered in cases dealing with a man overboard or a medical emergency—that of course begs the question: what minimum complement requirements would apply in those situations? [ 37 ] I can agree with neither the Union nor Transport Canada.

There is no support for distinguishing between emergency situations, and I have not been persuaded that a man overboard scenario is not an emergency situation to which the minimum complement requirements of subsection 207(4) of the MPR apply. I must admit that the tasks to be undertaken simultaneously set out in paragraph 207(4)(

d) seem

more to relate to fires on board and those emergencies necessitating the evacuation of passengers, however, neither the Act nor the MPR define the term “emergency situation”, nor does the MPR provide for differing minimum complements depending upon the nature of the emergency. One of the three internal policy documents guiding Transport Canada’s assessment of a vessel’s MSM level is Transport Canada’s Tier I – Policy, Determination of Minimum Complement [Tier I Policy], which contains Transport Canada’s

interpretation of the requirements under the MPR for MSM levels. Provision 2.1 in the Tier I Policy states that MSM levels must ensure that there are enough crew members on a vessel such that the number of crew members is sufficient to: • comply with the requirements of

Part 2 of the Marine Personnel Regulations ; • fulfill the tasks, duties, and responsibilities required for the safe operation of the vessel, for its security, for protection of the marine environment and for dealing with emergency situations; . . . [ 38 ] I also note that, although not necessarily applicable in this case,

section 24.74 of the Workers Compensation Act Occupational Health and Safety Regulation , BC Reg 296/97 adopted under British Columbia’s Workers Compensation Act , RSBC 1996, c 492 , includes a “man overboard” situation as an emergency, along with “fire on board”, “flooding of the vessel”, “abandoning ship” and “calling for help”. In any event, subsection 207(4) of the MPR clearly sets out the minimum complement of a vessel " “in order to deal with an emergency situation” " .

This can involve a wide range of situations where the safety of crew members and passengers is at risk, requiring intervention by the crew, and I have not been persuaded that either the Act or the MPR limit the notion of what is an emergency situation to fires on board or situations calling for the evacuation of passengers. [ 39 ] Upon being pressed during the hearing, Transport Canada did eventually concede that a man overboard scenario would in all likelihood be an emergency situation falling under subsection 207(4) of the MPR .

In fact, in its Muster List, BC Ferries accounts for a variety of emergencies including the prospect of a man overboard as well as medical emergencies, treating them as types of emergency scenarios requiring intervention by the crew. Consequently, and although it is not my intention to set out every scenario that would constitute an emergency situation under subsection 207(4) of the MPR , I find that a man overboard situation is such an emergency.

I also appreciate that, unlike normal operations dealt with under subsection 207(3) of the MPR , a vessel would not normally be underway in emergency situations or evacuation and post-abandonment situations. [ 40 ] This of course raises the issue of how Transport Canada assesses compliance with subsection 207(4) in the context of emergencies that do not necessarily involve a fire or the need to evacuate passengers. Transport Canada says that it did not have to consider medical emergencies and man overboard scenarios in its assessment of MSM levels because neither scenario was specified in the MPR .

I agree with Transport Canada but only as regards the application of paragraph 207(4)(

d) of the MPR . In my view, the determination of compliance with paragraph 207(4)(

d) of scenario-specific emergencies is not necessary given the manner in which the MPR are drafted. Once Transport Canada determines a minimum complement in an emergency situation which complies with paragraph 207(4)(

d) of the MPR—as evidenced in this case by the A Matrix—it need not repeat the process for different types of emergency scenarios. I suspect that in most if not all cases, that assessment and determination will be undertaken involving fire and evacuation scenarios, but that is simply a consequence of the somewhat outdated and restrictive provisions of paragraph 207(4)(

d) of the MPR . [ 41 ] However, all emergency scenarios, including man overboard and medical emergencies, remain subject to the minimum complement requirements of paragraphs 207(4)(

a) to (

c) of the MPR . Transport Canada argues that it cannot envisage every scenario that would constitute an emergency situation. That may be so, however when the scenario is actually addressed in BC Ferries’ documentation (as, for example, the contents of a muster list under the FBDR ), I would have to think that the SMT must consider that scenario in determining the minimum complement of a vessel. That said, in this case, I have not been convinced that the Muster List reflects deployment of the crew in a man overboard situation that is inconsistent with the requirements of paragraphs 207(4)(

a) to (

c) of the MPR . [ 42 ] Getting back to the issue of consideration of international instruments in the assessment of MSM levels, and putting aside what the STCW Code allows or does not allow, subsections 207(3) and 207(4) involve separate scenarios and have their own specific minimum complement compliance requirements—note, for example, that a master is specifically provided for in both subsections. That is not to say that a vessel may comply with one without having to comply with the other.

Section 207 sets separate minimum complement requirements for each scenario, with the highest number—in this case calculated with the A Matrix tool—generally becoming the MSM level for the vessel. The general operations scenario under subsection 207(3) is therefore not, as suggested by the Union, the “floor” above which the other scenarios are established. Unlike the requirements under subparagraphs 207(3)(d)(

i) and 207(3)(d)(ii) of the MPR , the deck and engineering watch requirements under subparagraphs 207(4)(b)(

i) and 207(4)(b)(ii) do not refer to sections 213 and 223 of the MPR , and thus the determination of the minimum complement in order to deal with an emergency situation need not consider the STCW Code. In other words, any restrictions that may exist in the STCW Code on reassigning crew that is on watch duty do not apply in the assessment of the minimum complement necessary to deal with emergency situations under subsection 207(4) of the MPR .

I would think that one of the reasons for this distinction may be because, as stated earlier, a vessel would not normally be underway in emergency situations, or even during evacuation and post-abandonment situations; the vessel’s engines would have been stopped. I am also mindful of subsection 207(2), which provides that a crew member performing the duties of a position listed on the SMD may be assigned to various duties in order to meet the requirements of more than one provision of

section 207 of the MPR . [ 43 ] I agree with the Union that Canada should respect its commitments when signing international treaties, however, the extent of the incorporation of any international convention is subject to the manner in which that convention or international instrument has been adopted into Canadian law; although the STCW Convention is listed in

Schedule 1 of the Act , it may be given force of law in Canada by regulation either in whole or in part ( subsection 29(1) and paragraph 35(1) (

d) of the Act ).

(9) Summary of the elements of the MPR, the A Matrix and the Muster List [ 44 ] I think it important to set out the differing elements of the MPR , the A Matrix filled out by the SMT as part of the assessment process for the C Licence and the Muster List, as they may be somewhat confusing. [ 45 ]

Section 207 of the MPR sets out the requirements for the minimum crew complement under various scenarios: the minimum

complement shall meet, where applicable, the requirements set out in subsection 207(3) for vessel operations (normal operations) as well as those set out in subsection 207(4) in order to deal with emergency situations, while at the same time the minimum complement must be sufficient to implement, in the case of passenger-carrying vessels, the evacuation plan required by the Life Saving Equipment Regulations , CRC, c 1436 [ LSER ] (subsection 207(5)), and to deal with a post-abandonment situation (subsection 207(6)). During emergency situations, paragraph 207(4)(

d) also provides certain tasks that the minimum complement must be able to simultaneously carry out, in addition to fulfilling the remaining requirements of subsection 207(4) of the MPR . [ 46 ] The A Matrix contains four sections which mirror the scenarios set out in

section 207 of the MPR : (

a) normal operations, (

b) emergency, (

c) evacuation (abandoning ship), and (

d) post-abandonment.

As stated earlier, in each of the four sections, the A Matrix contains a methodical option-driven series of tables and notes that refer to the various requirements of the MPR which the SMT runs through to complete after assessing the information provided by BC Ferries and tallies up the total number of crew required in each of the four distinct sections; the highest number of the four sections becomes the MSM level for the vessel. [ 47 ] The Muster List submitted by BC Ferries as part of the application for its Class C SMD deals with emergency and evacuation procedures and sets out the duties of the crew during the phases of emergency response and two specific types of emergencies: (1) initial response, (2) emergency stations, (3) prepare evacuation stations, (4) abandon ship plan, (5) rescue boat station (man overboard) and (6) medical emergency.

The Muster List informs the SMT when determining MSM levels and assists in the completion of the sections of the A Matrix by the SMT, which allows for the determination of compliance (one way or the other) with the minimum complement requirements of the scenarios set out in

section 207 of the MPR ; in the end, the SMT’s assessment and determination of the MSM level is undertaken through the prism of the MPR . [ 48 ] As stated, the A Matrix contains four sections or tables meant to correspond to the four scenarios set out in

section 207 of the MPR . (

a) A Matrix Table 1 – Normal Operations [ 49 ] For regular (non-emergency) operations, the boxes in table 1 of the A Matrix were completed by the SMT in accordance with the requirements of subsection 207(3) of the MPR and, in particular, the STCW Code. The deck crew is comprised of the master (who, because three deck watches were established, was counted as a member of the deck watch) and the chief mate as the additional person, both of whom would be able to fulfil the radio watch duties. The Union agrees that there is no requirement in this case for a second additional person.

The A Matrix also provided for one crew member for the engineering watch, and two additional crew to undertake other tasks as required—a five crew complement. No issue is taken by the Union with respect to this section. (

b) A Matrix Table 2 – Emergency Situations [ 50 ] For emergency situations, the boxes in table 2 of the A Matrix were completed by the SMT in line with the requirements of subsection 207(4) of the MPR to require a five crew complement as follows: (

a) Deck watch – the master, also acting as officer of the watch [OOW] (paragraph 207(4)(

a) and subparagraph 207(4)(b)(

i) of the MPR ) and an additional person duly certified, both of whom, as conceded by the Union in this case, could act as the principal communicator (paragraph 207(4)(c)) as well as undertake radio watch duties (subparagraph 207(4)(b)(iii)); (

b) Engineering watch – one crew member for the engineering watch (subparagraph 207(4)(b)(ii) of the MPR ); and (

c) As regards other persons needed in an emergency situation: two additional crew members, validated by the SMT through the documents supplied by BC Ferries, would be needed to permit the complement to carry out simultaneously the tasks listed under paragraph 207(4)(

d) of the MPR : (

i) one additional person to allow for the simultaneous operation and use of the fire-extinguishing equipment and system (subparagraph 207(4)(d)(i)); and (ii) one additional person to allow for the simultaneous direction and control of up to 150 passengers (subparagraph 207(4)(d)(iv)) on the basis of there being one compartment normally occupied by passengers and only one muster station. [ 51 ] The A Matrix also confirms that the SMT was able to validate through the documents supplied by BC Ferries that the requirement to operate the vessel’s pumping and emergency power system (subparagraph 207(4)(d)(iii)) could be undertaken simultaneously—the Union agrees that the chief engineer would undertake this task—as would the requirement to provide communication between the person in immediate charge of the vessel and the persons directing and controlling the passengers (subparagraph 207(4)(d)(v))—the Union agrees that the master could undertake this task.

The box for the principal communicator (paragraph 207(4)(c)) has been crossed out on the template for the A Matrix—again, the Union agrees that an additional person is not required as this task may be fulfilled by the OOW. [ 52 ] However, the A Matrix template also crosses out the box associated with the preparation for launch of the survival craft (subparagraph 207(4)(d)(ii)), something which the Union says is unreasonable because this is a specific task that must be undertaken simultaneously with the remaining tasks set out in paragraph 207(4)(

d) of the MPR ; I will deal with this issue further on in my decision. [ 53 ] The explanatory notes to the A Matrix provide that where a vessel is fitted with remotely operated fire monitors, a reduction in the personnel affected to the firefighting team may be acceptable if validated by the SMT—which the colour coding of the A Matrix in the record confirms was the case.

The colour coding of the A Matrix also confirms that the SMT validated by way of the assessments and explanations provided by BC Ferries in Application Form A that the crew assigned on the Muster List was able to direct and control the 145 passengers on-board. It should be remembered that the SMT had before it BC Ferries’ MSM Risk Assessment Report and tabletop exercise. (

c) A Matrix Table 3 – Evacuation (Abandoning Ship)

[ 54 ] Unlike subsections 207(3) and 207(4), subsection 207(5) of the MPR , which deals with the scenario of evacuating passengers, does not set out the specifics of what the minimum complement of a vessel should consist of. Rather, that subsection simply states that the minimum complement shall consist of " “a sufficient number of persons to carry out an evacuation” " and, in the case of a passenger- carrying vessel, to implement the evacuation plan required by the LSER . Accordingly, the evacuation (abandoning ship)

section of the A Matrix does not refer to any watchkeeping duties. Given that the Island Class ferries were equipped with an MES, the SMT allocated one crew member to be the person in charge of overall evacuation, one crew member necessary to be at the top of the evacuation slide and one crew member (per 150 passengers) for crowd control. In addition, the A Matrix allocated two crew for rescue boat operations—for a total of five crew. (

d) A Matrix Table 4 – Post-abandonment [ 55 ] As with the evacuation scenario, the post-abandonment scenario under subsection 207(6) of the MPR does not set out the specifics of the minimum complement of a vessel, but simply states that the minimum complement shall consist of a sufficient number of persons in order to deal with a post-abandonment situation; in this case, the SMT determined that only one person was required to deal with such a situation given the parameters set out in the A Matrix. [ 56 ] As the MSM level is to be the highest number of each of the four sections of the A Matrix, the MSM level for the Island Class ferries was set at five crew. [ 57 ] As instructed by Vavilov , without reasons, my review will focus more on the outcome of the decision to issue the C Licence rather than on the SMT’s reasoning process.

B. Issues raised by the Union

(1) Was it unreasonable for Transport Canada to decide that a five-person crew could conduct safe deck and engineering watches during emergencies as required by subparagraphs 207(4)(b)(

i) and (ii) of the MPR? [ 58 ] As stated, the A Matrix confirmed a deck watch made up of the master as OOW along with an additional person on the bridge in accordance with sections 214 to 216 of the MPR and a one-person engineering watch during emergency situations, leaving two crew to undertake the other tasks that may be required.

The Union asserts that two crew are insufficient to carry out emergency duties as thereby the vessel must necessarily shift at least one crew member from either the deck or engineering watches to assist, thus no longer complying with deck and engineering watch requirements. [ 59 ] The Union gives the same example of a man overboard scenario and argues that the Muster List during the rescue boat stations (MOB) phase provides that with three crew members responding to an incident, only the master and chief engineer remain on the bridge, thus the bridge and engineering watch requirements under subsection 207(3) are compromised.

However, as I indicated earlier, I do not accept that the minimum complement requirements in a man overboard scenario are to be assessed under subsection 207(3) of the MPR . [ 60 ] Alternatively, the Union argues that even if the minimum complement for a man overboard scenario is to be assessed under subsection 207(4), having only two crew available to respond to a man overboard nonetheless creates a situation whereby the deck and engineering watch requirements under subparagraphs 207(4)(b)(

i) and (ii) must again be compromised; the Union points to the Launch and Recovery of Rescue and Shepherd Boats Policy [LRRSBP]—part of the VSM documents which regulates the launching of rescue boats in the event of, inter alia , emergency man overboard situations—which provides for a team of four crew (person in charge, coxswain, assist in boat and davit operator) to engage in the operation of the rescue boat in a man overboard situation.

Therefore, argues the Union, a crew of five still cannot maintain compulsory bridge and engineering watches while safely launching and recovering a rescue boat in an emergency situation. [ 61 ] First, tethering the Union’s argument to the Island Class ferries’ safety policies and procedures is a non-starter as the LRRSBP was not before the SMT when the C Licence was issued, nor did it have to be.

As stated earlier, the version of the VSM documents forming part of the Union’s record was prepared on the basis of the Island Class ferries having obtained their A Licence and B Licence (where more than five crew are aboard and available) and is now in the process of being updated to take into account the issuance of the C Licence.

It may very well be that once revised, and with only five crew on board, the LRRSBP may combine the duties of the person in charge with those of the davit operator, similar to what the LRRSBP provides for in the abandon ship/evacuation launch scenario, however, at this point we would only be speculating. [ 62 ] In any event, I cannot accept the Union’s argument on this issue; the Muster List provides in the rescue boat stations (MOB) phase that the deployment and re-securing of the rescue boat is to be undertaken by the mate (acting as person in charge) and that the rescue boat is to be manned by the deckhand (acting as coxswain) and the rating (acting as the assist in boat person), during which time the master remains on the bridge (acting as the officer of the watch) along with the chief engineer (on engineering watch and acting as additional person for deck watch).

I deal with the issue of the davit operator below, however, I do not see any compromise of the deck or engineering watch under this scenario in relation to the requirements of subparagraphs 207(4)(b)(

i) and (ii)—the chief engineer is on the bridge during all phases of the Muster List, and I have not been shown that she or he in this case is not qualified to act as the “additional person” to satisfy the requirements of sections 214 to 216 of the MPR . [ 63 ] In addition, I have not been convinced by the Union that the deployment and use of the rescue boat in a man overboard situation is consumed within the " “prepare for launching the survival craft” " task under subparagraph 207(4)(d)(ii) of the MPR , which deals with the LSER and, more appropriately, the vessel’s MES.

I appreciate, as I set out below, that the rescue boat acts as the power unit for the inflatable life raft, however, the context of subparagraph 207(4)(d)(ii) of the MPR does not seem to me to contemplate the use of the rescue boat in a man overboard situation, nor am I convinced that the rescue boat is to be included in the notion of “survival craft” under subparagraph 207(4)(d)(ii) of the MPR . In fact, the Muster List only provides for the launching or deployment of the MES in the prepare evacuation stations and abandon ship plan phases, at which time it is the chief engineer who deploys the MES.

The deployment of the MES is not undertaken during the rescue boat stations (MOB) phase; rather, it is the mate, as the person in charge, who deploys and re-

secures the rescue boat. [ 64 ] The Union also argues that there must be flexibility in the manning requirements of vessels to allow for addressing unforeseen situations without necessitating a compromise of bridge and engineering watch requirements. That issue, I would think, is not one relating to the statutory requirements of MSM levels but rather one of policy by the owners of the vessels. The obligation of Transport Canada is to set MSM levels that comply with the regulations keeping in mind the proposed operations of the vessels as set out in the application for an SMD.

If owners determine that a greater number of crew is thereafter required to give some flexibility to the master to address particular or unforeseen situations that may be encountered during those operations, owners may implement higher manning levels when appropriate.

What is clear is that in the end, the master shall not operate a Canadian vessel unless it is staffed with a crew that is sufficient and competent for the safe operation of the vessel on its intended voyage ( subsection 82(2) of the Act ); the maintenance of minimum manning levels is not a guarantee of safety or the seaworthiness of the vessel in all circumstances. [ 65 ] The Union also argues that BC Ferries’ FOM and VSM for the Island Class ferries require three crew members on the bridge, including the master, during emergency situations, while the Muster List only provides for two members of the crew on the bridge; the Union points to the Bridge Resource Management Policy [BRMP], part of the VSM, which provides for three-person bridge manning—a navigator, a lookout/helmsperson and a monitor—during red zone situations.

Again putting aside that the BRMP was not before the SMT, I believe that the Union is misinterpreting the documentation; the BRMP sets out what is meant by a red zone situation: " “approaching a dock, navigating in a narrow passage, navigating in restricted visibility and any other circumstance that warrants heightened vigilance” " .

However, a situation where the navigation of the vessel requires a heightened sense of vigilance is distinct from emergency situations—a fire on board, a collision, grounding or any event that requires the evacuation of the vessel—for which the Muster List is prepared; the response in emergency situations is determined by the nature of the emergency (for example, responding to a fire as opposed to a man overboard situation).

In short, the BRMP addresses bridge manning levels during non-emergency situations of higher risk, while the Muster List addresses bridge manning during emergencies. [ 66 ] The Union also argues that the Emergency Response Teams Policy [ERTP]—which is part of the VSM for the Island Class ferries and which creates four emergency response teams—calls for a complement of six crew during emergency situations, including an engine room assistant, and therefore a complement of five crew would be insufficient to comply with the safety policies and procedures.

However, the evidence of BC Ferries shows that with the issuance of the C Licence, the ERTP is in the process of being reviewed to remove the requirement of an engine room assistant. [ 67 ] Rather, the issue is whether the determination by the SMT that two additional crew members—in addition to the two-person deck watch and one-person engineering watch—were sufficient to avoid compromising the deck and engineering watch requirements during an emergency situation and allow for compliance with subsection 207(4) of the MPR was unreasonable. I have not been persuaded that it was.

(2) Was it unreasonable for Transport Canada to decide that a five-person crew could perform specified emergency duties simultaneously as required by paragraph 207(4)(

d) of the MPR? [ 68 ] The Union argues that one of the unreasonable aspects of the decision to issue the C Licence is that the tabletop exercise submitted by BC Ferries as well as the manner in which the emergency phases are dealt with in the Muster List indicate that the tasks set out in subparagraphs 207(4)(d)(

i) to (

v) of the MPR are undertaken sequentially, while the MPR requires that they be carried out simultaneously. The Union asserts that all of the tasks that needed to be conducted simultaneously in satisfaction of paragraph 207(4)(

d) are being conducted across two phases of the Muster List—for example, the task of “fighting the fire” under subparagraph 207(4)(d)(

i) is being undertaken during the emergency stations phase, while the " “prepare for launching the survival craft” " task under subparagraph 207(4)(d)(ii) is being undertaken during the prepare evacuation stations phase; the tasks are being undertaken one after the other rather than simultaneously as required by paragraph 207(4)(

d) of the MPR . [ 69 ] I appreciate that with the “validation through muster list” initiative, the Muster List is meant to inform the SMT so as to validate compliance with the regulations, an exercise once performed through the evacuation and safety drills.

However, the SMT is not tasked with ensuring that the Muster List is compliant with regulations; that is the responsibility of BC Ferries and that is why Transport Canada expressly referred to the company’s obligation of ensuring that the effectiveness of the vessels’ muster lists continue to meet the requirements of the regulations when it issued the C Licence to BC Ferries. The challenge lies, I think, in trying to layer and match up the phases of the Muster List with the tasks set out in subparagraph 207(4)(d)(

i) to (

v) of the MPR . It is difficult to do so because the Muster List also serves another purpose; the Muster List is also meant to reflect the evolution of emergency response, setting out the duties of the crew during each phase of an emergency situation, including the implementation of the evacuation plan (subsection 207(5)) as well as the management of a post-abandonment situation (subsection 207(6) of the MPR ). These phases are sequential.

There is a temporal aspect to the Muster List, reflecting the need to first identify and assess an emergency, and then address and mitigate the risk; the situation may warrant the need to thereafter prepare for the evacuation of the passengers and crew and, if the situation has not stabilized, implement the evacuation plan required under the LSER .

It would make little sense to assess initial response to an emergency while at the same time abandoning the ship altogether; one needs to understand the nature of the emergency before deciding how to respond, and each member of the crew must understand what she or he must do during each of the phases.

If, for example, a fire were to start in one of the few spaces not fitted with an automated sprinkler and fire protection system—such as the passenger lounge, crew change rooms or offices, which are considered low or nil risk for fire—it may possibly be contained and put out by the crew member operating a hand- held fire extinguisher; the matter may never escalate to the point where the chief engineer must operate the vessel’s pumping and emergency power system (subparagraph 207(4)(d)(iii) of the MPR ) or where the master rings the general alarm thus triggering the requirement to prepare for the launching of the survival craft (assuming preparation was needed) under subparagraph 207(4)(d)(ii) of the MPR .

The crew would then not need to shift duties from the emergency stations phase on the Muster List to their duties under the prepare evacuation stations phase, which calls for the deployment of the MES. [ 70 ] On the other hand, paragraph 207(4)(

d) of the MPR represents a snapshot in time, requiring evidence that the minimum complement would be able to carry out simultaneously the five tasks set out in subparagraphs 207(4)(d)(

i) to (v). As indicated earlier, I must admit that paragraph 207(4)(

d) of the MPR seems somewhat outdated and does not seem to easily factor in advances in firefighting philosophy

and systems or in modern survival craft.

Leaving aside the need for regulatory modernization, in reviewing the A Matrix in conjunction with the tabletop exercise—a frame by frame account of the running of evacuation and safety drills through the phases of the emergency response reflected in the Muster List—I do not find the SMT’s determination to be unreasonable under the circumstances: the master, in command and as OOW, remains on the bridge and is in communication with the person directing and controlling the passengers (subparagraph 207(4)(d)(v)); the chief engineer is the additional person on the bridge and undertakes the operation of the firefighting equipment, prepares for activating the MES and operates the vessel’s pumping and emergency power systems (subparagraphs 207(4)(d) (i)(ii) and (iii)); with the mate in charge on scene and the rating and deckhand undertaking passenger control (subparagraph 207(4)(d) (iv)). [ 71 ] That said, the Muster List does in fact support compliance of the MSM level of the C Licence with the requirements of the MPR .

Focusing on the emergency stations phase of the Muster List: i . subparagraph 207(4)(d)(i) – The fire is being dealt with by the automated fitted firefighting systems which are activated automatically or from the bridge by the chief engineer. This of course assumes that the fire has not been extinguished by the mate who would have been first on scene during the initial response phase. Notes 8 and 9 of the Muster List make it clear that the mate and rating are performing primary fire party duties and any special duties assigned with respect to firefighting equipment and installations.

The evidence of BC Ferries shows that the mate and the rating are in charge of firefighting, however, the system places less emphasis on the crew having to fight a fire on board, thus freeing them up to undertake other tasks such as initial response and assessment, determining that the firefighting equipme

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