MARITIME LAW |
Harbours |
Westshore Terminals Ltd. v. Vancouver Port Authority
A-124-02
2002 FCA 517, Rothstein J.A.
18/12/02
9 pp.
Respondent obtained leave to have Court answer number of questions prior to hearing merits of application for judicial review of Vancouver Port Authority's refusal to reduce lease payments--Appellant now appeals decision ((2002), 217 F.T.R. 113) answering questions--Whether lease payments constituting fees to which Canada Marine Act, s. 53, applies and therefore subject to requirements of ss. 49(3), 50(1) that they be fair, reasonable, not unjustly discriminatory-- Contrary to appellant's argument, when fees agreed upon according to s. 53, requirements of ss. 49 to 52 not applicable--First, s. 49(6) provides fees in place on date Act came into force, expire on earlier of 6 months after Act came into force and replacement of fee by fee fixed under s. 49(1)--No suggestion s. 49(6) intended to abrogate contracts respondent had entered into and no rational connection between s. 49(6) and fees agreed to in contract--No reason for contracts to end simply because Act came into force--Second, s. 52(1) provides relief may be sought from Canadian Transportation Agency from any fee fixed under s. 49(1) that is unjustly discriminatory--However, fee under contract to which s. 53 applicable not fee fixed under s. 49(1) and no provision for relief in respect of contractually agreed fee-- Interpretation supported by fact unjust discrimination implies comparison in fees charged between users where conditions substantially similar--Therefore, relief against unjust discrimination not intended to apply to fees under contracts-- Third, s. 49(1) provides respondent "may fix fees"-- Terminology applicable to unilateral publication of fees payable by users in general--However, under s. 51(4), requirement to publish not applicable to fees accepted in contract, again reinforcing view fees accepted in contract not fees fixed under s. 49(1) and ss. 49 to 52 not applicable to fees accepted in contract--Even if lease payments fees falling under s. 53, relief available against unjust discrimination not applicable to fees under s. 53--Appeal dismissed--Canada Marine Act, S.C. 1998, c. 10, ss. 49, 50(1), 51(4), 52, 53.