Digests

Westshore Terminals Ltd. v. Vancouver Port Authority

T-68-00

2002 FCT 195, Nadon J.

22/2/02

30 pp.

Determination of issues--Applicant and National Harbours Board (legal predecessor to respondent) entered into agreement in 1982 whereby applicant leased two shipping berths located at Roberts Bank, man-made island in Delta, British Columbia--Roberts Bank Crown land forming part of Port of Vancouver--Applicant constructing, operating bulk coal loading facility where coal received, handled, stored-- Respondent agent of Crown--Rates freely negotiated by applicant, respondent--Lease agreement providing rates to be increased every three years--According to applicant, rates more than tripling since 1982 and since 1982 has paid three times total capital costs of constructing Roberts Bank and more than six times capital costs of constructing portion of property applicant's coal terminal occupies--Furthermore, applicant invested over $200 million of own money for improvements, including trackage, buildings, coal-loading equipment--Commenced judicial review proceedings in respect of respondent's refusal to reduce lease payments on grounds payments unfair, unreasonable, discriminatory, pursuant to Canada Marine Act, ss. 49(3), 50--S. 49(3) requiring rates fixed by port authority to be fair, reasonable--S. 50(1) prohibiting port authority from unjustly discriminating among users, classes of users of port--(1) Lease rates not fees within meaning of Canada Marine Act-- S. 2(1) defining "fees" as including harbour dues, berthage, wharfage, as well as duties, tolls, rates, other charges-- Ejusdem generis, canon of construction that when general word, phrase following list of specific persons or things, general word, phrase will be interpreted to include only persons, things of same type as those listed, relevant to interpretation of word "fees"--Common feature between items enumerated that all constitute charges traditionally fixed by port authority for services provided to those who use port--All of these charges not negotiated between port authority, users but "imposed" by way of tariff, and users have no say in establishment of charges--Rates payable under lease agreement have nothing in common with items enumerated in s. 2(1)--Further lease rates freely negotiated, not unilaterally imposed--Support for this view also found in French version, other relevant sections of statute--(2) S. 49, permitting port authority to fix fees, applying to lease rates--Ss. 44 to 48 under heading "Property" while ss. 49 to 53 under heading "Fees"--Thus Parliament making distinction between port authority's power to lease property, fix "fees" under s. 49(1) --Power to manage federal real property derives from letters patent issued by Minister--Act not placing any restriction on port authority with respect to amount of rent may collect under negotiated leases--"Fees" dealt with in ss. 49 to 53 completely different than leases which might be entered into by port authority pursuant to s. 45(3)--Ss. 44 to 48, coupled with letters patent, constituting complete code governing port authority's power with respect to leasing of federal property in port under authority's jurisdiction--Rent not being paid in respect of any rights or privilege conferred by respondent in respect of Port of Vancouver, but pursuant to lease agreement --S. 49(3) requiring fairness, reasonableness only in respect of those "fees" fixed by port authority--Fairness, reasonableness not required, either with respect to payments negotiated or with respect to lease payments made under freely negotiated lease agreements--Had Parliament intended to include lease payments in definition of "fees" would have expressly stated intention--Parliament's silence can only mean not intending to include lease payments in definition of "fees"--S. 53, permitting port authority to agree by contract to accept fees different from fixed fees, clearly applies only to fees which port authority has power to fix under s. 49(1)-- Close examination of predecessor statutes supporting this interpretation--(3) As rents payable under lease agreement not "fees, s. 50 not applying to lease rates--Even though not referring to "fees", s. 50(1) only applying to subject-matter of ss. 49 to 53 i.e. fees fixed by port authority under s. 49(1)--S. 50(1) must be read with s. 52(1), permitting interested person to file complaint with Canadian Transportation Agency on grounds fee fixed by port authority under s. 49(1) discriminatory--Discrimination in regard to which person may file complaint discrimination in regard to fees fixed by port authority under s. 49(1)--(4) Common law governing "practical monopolies" not imposing any duties upon respondent in respect of lease rates--Common law principle: obligation of public utility or other body having practical monopoly to supply product to all who seek it for reasonable price, without unreasonable discrimination between those who are similarly situated or who fall into one class of consumers: Chastain et al. v. British Columbia Hydro and Power Authority (1972), 32 D.L.R. (3d) 443 (B.C.S.C.)--As neither evidence nor authority suggesting Crown subject to common- law monopoly rules, respondent, as agent for Crown, not subject to common-law monopoly principles when leasing Crown land--If common-law obligation imposed on port authorities, then that duty codified by enactment of ss. 49, 50 --But those sections not applicable to payments under lease agreement--(5) Court having jurisdiction to grant relief if if satisfied sufficient grounds to intervene--If lease rates "fees", Court has jurisdiction to provide remedy--Canada Marine Act, S.C. 1998, c. 10, ss. 2(1) "fees", 44, 45, 49, 50, 52, 53.