[2013] 1 F.C.R. D-3
Maritime Law
Harbours
Judicial review of False Creek Harbour Authority’s (FCHA) decision not to renew applicant’s lease of storage locker at False Creek Fishermen’s Terminal (Harbour)—FCHA not-for-profit corporation, operating Harbour pursuant to lease agreement signed with Minister of Fisheries and Oceans—Lease requiring that FCHA use leased premises to operate public commercial fishing harbour—Applicant leasing gear storage locker at Harbour but not actively fishing commercially for several years contrary to Harbour’s policy manual; therefore not meeting eligibility requirements—Whether FCHA constituting federal board, commission or other tribunal for purposes of Federal Courts Act, R.S.C., 1985, c. F-7; whether FCHA’s decision in question reviewable under Act, s. 18.1—While Fishing and Recreational Harbours Act (FRHA), R.S.C., 1985, c. F-24 not expressly authorizing Minister to delegate authority, s. 8 thereof allowing Minister to delegate authority by lease, licence or agreement—Relevant provisions of FRHA, associated regulations implying authorization for Minister to sub-delegate authority over use, management, maintenance of harbour to lessee—Lessee effectively authorized to operate, manage all aspects of harbour as if Minister having retained control thereof—Wording of lease in present case mirroring Minister’s authority under FRHA, s. 4—Therefore, FRHA impliedly authorizing Minister to delegate authority over use, management, maintenance of Harbour—In present case, lease constituting sub-delegation of Minister’s authority to FCHA—Formalism potentially trumping substance if FCHA characterized as something other than federal board by reason that commercial instrument used as means of delegation—While FCHA constituting federal board, not all decisions thereof reviewable—FCHA’s decision not to renew locker lease constituting private, commercial power, not subject to judicial review given private character of matter, fact decision dictated by private determination, not by law—Therefore, FCHA not exercising public power when deciding to terminate lease—Application dismissed.
Archer v. Canada (Attorney General) (T-133-11, 2012 FC 1175, Rennie J., judgment dated October 9, 2012, 21 pp.)