ADMINISTRATIVE LAW |
Judicial Review |
Westshore Terminals Ltd. v. Vancouver Port Authority
T-68-00
2001 FCT 312, Hargrave P.
7/3/01
17 pp.
Motion under Federal Court Act, s. 18.4 to allow judicial review application to be treated, proceeded with as action--Westshore operating bulk coal loading facility at Roberts Bank, B.C.--Area leased from Vancouver Port Authority--(VPA) Seeking judicial review of rent paid under lease as believes rate inconsistent with rates charged to other lessees, above rate charged to competitor--Canada Marine Act, s. 50(1) prohibiting Port Authority from unjustly discriminating among Port users--S. 49(1) allowing Port Authority to fix fees in respect of various uses, services--Westshore submitting combined result of these two sections that fees must be fair--Submitting s. 50(1) codification of common law applicable to public utility or other monopoly service provider i.e. monopoly provider of goods, services must do so without discriminating between customers--Motion denied--Prince Edward Island Potato Board v. Canada (Minister of Agriculture) (1992), 56 F.T.R. 150 (F.C.T.D.) stating procedure for judicial review in Federal Court Act ought not to be departed from except in clearest of circumstances--"Clearest of circumstances" test approved, reinforced in Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464 (C.A.) by pointing out Parliament's intention judicial review proceed quickly, and s. 18.4(2) coming into play only where facts not satisfactorily established, weighed through use of affidavit evidence--Test not whether evidence through trial might be superior, but whether affidavit evidence heard on judicial review would be inadequate--Complex factual situation, legal issues not factors in converting judicial review to action--Macinnis discarded various reasons arguable in support of motion for conversion to action, including factual vacuum, complex legal issues, time required by counsel to submit cases, volume of affidavit evidence, subjective desire for viva voce evidence--Important to remember true nature of question to be answered by Court in judicial review proceedings, consider adequacy of affidavit evidence for answering questions: Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42 (T.D.)--Court's function in judicial review to determine whether decision made in accordance with law--Assessment of factual, expert views irrelevant to that determination--Not Court's role herein to analyse accounting information, statistics, practice, public interest, set rate of rent--Consideration herein should be given to avoiding unnecessary costs, delays, necessity for assessing demeanor, credibility of witnesses, need for Court to fully grasp all of evidence --True nature of questions to be answered by Court considered--If issue before Court narrow legal issue of law or legislation applicable to VPA, in setting rent, no arguable reason to convert proceeding to action--If broad factual question before Court, certain additional portions of substantial affidavit material might be relevant--But material not such that Court might need viva voce evidence to determine rent improper--Summary determination by way of affidavit evidence and utilizing judicial review would not handicap Court, prevent it from dealing adequately with issues--Issues not so complex as to require full panoply of trial--Mass of affidavit material filed by VPA in response to Westshore's opposition to trial not constituting estoppel--Rather Port Authority laid out whole case for benefit of Westshore--Canada Marine Act, S.C. 1998, c. 10, ss. 49(1), 50(1)--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.4 (as enacted by S.C. 1990, c. 8, s. 5).