Where you have a Canadian statute in both official languages, the unambiguous English (or French) version is generally preferred to its ambiguous counterpart in the other language. Canada v ‘MV Stormont’ (The), 2012 FCA 93, marks a bit of a departure from that principle. Truck ferry companies argued that they were not liable for ice-breaking fees charged by the Canadian Coast Guard for journeys between Windsor and Detroit (and that the Windsor Port Authority, not the Coast Guard, had the jurisdiction to impose fees for the service). They rested their case on the wording of the French version of the federal fee schedule, which states that ice-breaking fees are payable for all vessels which effect ‘un transit dans la zone des glaces’. The English reads slightly differently: the fees apply to ‘all ships that transit the ice zone’. They argued that use of the verb ‘transit’ in the English left it unclear whether the vessel’s movements had to be entirely within the ice zone; the French was clear that it did. They also pointed to the fact that the definition of ‘transit’ in the French version required there to be an intervening area of ice between both ports for the fees to be payable, whereas the English definition referred to ‘any movement of a ship which includes one port of departure, one port of arrival’ – which was clearly different. According to the normal rule the more precise French should prevail, the companies contended, with the result that on the facts their transits were not subject to the fees.
Not so, said the Federal Court of Appeal. Federal legislation is no longer drafted in one official language and then translated into the other; two sets of drafters work independently in each language based on the same set of instructions. The issue, then, is not whether a particular version is an accurate translation of the other, but whether any given version reflects the underlying legislative intent. This intent was plain – in both languages – from another section in the fee schedule, which provides that fees are payable on ‘each transit to and from a Canadian port located in the ice zone’ (‘chaque transit à destination ou en provenance d’un port canadien situé dans la zone des glaces’), which caught the ferry companies either way you looked at it. The jurisdiction argument also failed.
[Link available here].