Judgments

[1997] 3 F.C. 899

A-151-96

St. Lawrence Cruise Lines Inc. (Appellant) (Defendant)

v.

Her Majesty the Queen (Respondent) (Plaintiff)

Indexed as: Canada v. St. Lawrence Cruise Lines Inc. (C.A.)

Court of Appeal, Desjardins and Décary JJ.A. and Chevalier D.J.—Montréal, May 15; Ottawa, June 20, 1997.

Construction of statutes — Whether Government Wharves Regulations, imposing charge per passenger solely in respect of cruise vessels engaged in voyage during which passengers on board for at least one overnight period, ultra vires Public Harbours and Port Facilities Act — Vessels offering day cruises, using dock in same manner for same purposes not subject to charge — Act, s. 3 definition of “national ports policy” including objective of accessibility, equitable treatment in movement of goods and persons to users of Canadian ports — Exceptional requirement of “equitable treatment” intended to confer broader rights on users of Canadian harbours than those stemming from implied requirement of non-discrimination generally read into enactments — Act not authorizing raising revenues unless in connection with use made of facilities — Charges not complying with principle of equitable treatment — Definition of “cruise vessel” in Regulations invalid.

Maritime law — Harbours — Government Wharves Regulations imposing charge per passenger solely in respect of cruise vessels engaged in voyage during which passengers on board for at least one overnight period — Vessels offering day cruises, using dock in same manner, for same purposes not subject to charges — Public Harbours and Port Facilities Act, s. 3 definition of “national ports policy” including objective of accessibility, equitable treatment in movement of goods, persons to users of Canadian ports — Act permitting raising revenue, but only in connection with use made of facilities — Charges not complying with principle of equitable treatment — Definition of “cruise vessel” in Regulations invalid.

This was an appeal from the trial judgment declaring certain sections of the Government Wharves Regulations valid and allowing the Crown’s action for payment of charges thereunder. The appellant operates a cruise service between Kingston, Ottawa, Montréal and Québec. The passengers spend at least one night on board. In 1986 the Governor in Council amended the Regulations to impose a charge per passenger solely in respect of cruise vessels that were engaged “in a voyage during which the passengers are on board the vessel for at least one overnight period”. The Minister of Transport demanded payment from the appellant of $60,937.12, which represented the number of passengers who had used the Crawford Dock at Kingston multiplied by the amount of the charge payable from 1988 to 1995. Other cruise vessels which offered only day cruises and used the same dock in the same manner, for the same purposes and more often than the appellant’s vessels, were not required to pay the charges since their passengers did not spend any nights on board. The appellant’s vessels did not berth at the Crawford Dock during the night. The objective in imposing the charges was to generate revenue, regardless of the particular use made of the harbour facilities. These cruises were targeted because the charges imposed were not a “significant portion” of the cost of the cruise. The Minister of Transport, in a letter to appellant’s president explained that harbour fee increases were necessitated by rising costs and the government’s deficit reduction exercise. One of the objectives of the “national ports policy”, as defined in Public Harbours and Port Facilities Act , paragraph 3(1)(c), is to provide accessibility and equitable treatment in the movement of goods and persons to users of Canadian ports. The Trial Judge held that the Regulations did not violate the principle of equitable treatment, since all overnight cruise vessels were affected; the purpose of the Governor in Council’s action was valid; and that the distinction between long-term cruises and short-term cruises was not discriminatory.

The issue was whether the Regulations were ultra vires the enabling statute.

Held, the appeal should be allowed and the definition of “cruise vessel” in Government Wharves Regulations, sections 2, 25(3.1), 26.1 and Schedule VII declared invalid.

The first thing that must be done when the validity of a regulation is challenged is to construe the enabling statute. The legislative policy set out in Public Harbours and Port Facilities Act, paragraph 3(1)(c) is exceptional. There are only two other statutes in the body of federal legislation that speak in these terms, and they also relate to national ports policy. Parliament must, therefore, have intended to give users of Canadian harbours broader rights than those that stem from the implied requirement of non-discrimination which courts generally read into enactments.

The objective of raising revenue and reducing the deficit is permitted by paragraphs 3(1)(a) and (b), and is at least implicitly recognized in the fact that the Minister is granted general powers of administration (section 4) and development (subsection 12(1)). But any action taken with that objective must be taken in the manner permitted by the Act, and the Act does not authorize it unless it is in connection with the use made of the facilities. While the amount of the charges need not reflect the exact cost of the use made of the facilities, the charges imposed must be related to a particular use, and users must be treated equitably. Imposing charges solely on overnight cruise vessels that make the same use of port facilities as do day cruisers does not comply with the principle of equitable treatment, which means that where use is equal, and absent any other valid objective which would permit a distinction to be made, all vessels in the same class should be treated equally. The objectives defined in subsection 3(1) are complementary. The Minister may impose fees to raise revenue and reduce the deficit, but in so doing he must “provide equitable treatment” to cruise vessels. The impugned provisions are inconsistent with this objective.

Although the Regulations could not include in “vessel” a class that was not included in the definition of the word “vessel” set out in the Act, in this instance the argument was academic since, in the English version, Parliament has used the word “includes” rather than “means”, and since the definition given, “every description of ship, boat or craft” is sufficiently broad to encompass cruise vessels. On the other hand, it is implicitly necessary, for the administration of the Act, that it be possible for the Regulations to distinguish among certain classes of vessels. An express statutory provision is not required in order for classes or sub-classes to be established by regulation.

In reality, the Minister of Transport was here collecting a tax on the income of a business thought to be providing a luxury service. The Act did not allow the Minister to substitute himself in this respect for the Minister of Finance.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Aeronautics Act, R.S.C. 1970, c. A-3.

Aeronautics Act, R.S.C., 1985, c. A-2.

Air Services Fees Regulations, C.R.C., c. 5.

Broadcasting Act, R.S.C. 1970, c. B-11.

Canada Ports Corporation Act, R.S.C., 1985, c. C-9, s. 3(1)(c).

Department of Transport Act, R.S.C. 1970, c. T-15, s. 25.

Federal Court Act, R.S.C., 1985, c. F-7, s. 22(2)(s).

Fisheries Act, R.S.C. 1970, c. F-14.

Government Wharves Regulations, C.R.C., c. 881, ss. 2 “cruise vessel” (as am. by DORS/86-493, s. 1), 25(1),(2),(3),(3.1) (as am. idem , s. 3), 26.1 (as am. idem, s. 5), 28 (as am. idem, s. 6), Sch. VII (as am. idem, s. 9).

Harbour Commissions Act, R.S.C., 1985, c. H-1, s. 3(1)(c).

National Transportation Act, 1987, R.S.C., 1985 (3rd Supp.), c. 28, s. 3(1)(e).

Public Harbours and Port Facilities Act, R.S.C., 1985, c. P-29, ss. 2 “vessel”, 3, 4, 12(1)(i ),(j), 13.

CASES JUDICIALLY CONSIDERED

APPLIED:

Padfield v. Minister of Agriculture, Fisheries and Foods, [1968] A.C. 997 (H.L.); Roncarelli v. Duplessis, [1959] S.C.R. 121; (1959), 16 D.L.R. (2d) 689; Montréal (City of) v. Arcade Amusements Inc. et al., [1985] 1 S.C.R. 368; (1985), 14 D.L.R. (4th) 161; 29 M.P.L.R. 220; 58 N.R. 339; Alaska Trainship Corporation et al. v. Pacific Pilotage Authority, [1981] 1 S.C.R. 261; (1981), 120 D.L.R. (3d) 577; 35 N.R. 271; Great Lakes Pilotage Authority Ltd. v. Misener Shipping Ltd., [1987] 2 F.C. 431 (1987), 38 D.L.R. (4th) 745; 11 F.T.R. 208 (T.D.).

DISTINGUISHED:

Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), [1987] 2 F.C. 93 (1986), 32 D.L.R. (4th) 737; [1987] 2 W.W.R. 727; 72 N.R. 31 (C.A.); New Brunswick Broadcasting Co., Limited v. Canadian Radio-television and Telecommunication Commission, [1984] 2 F.C. 410 (1984), 13 D.L.R. (4th) 77; 2 C.P.R. (3d) 433; 12 C.R.R. 249; 55 N.R. 143 (C.A.); Aerlinte Eireann Teorante v. Canada (Minister of Transport) (1990), 68 D.L.R. (4th) 220; 107 N.R. 120 (F.C.A.); Airport Taxicab (Malton) Association v. Canada (Minister of Transport) et al. (1986), 7 F.T.R. 105 (F.C.T.D.).

REFERRED TO:

Thorne’s Hardware Ltd. et al. v. The Queen et al., [1983] 1 S.C.R. 106; (1983), 143 D.L.R. (3d) 577; 46 N.R. 91; Haig v. Canada; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; (1993), 105 D.L.R. (4th) 577; 16 C.R.R. (2d) 193; 156 N.R. 81.

AUTHORS CITED

Pigeon, Louis-Philippe. Rédaction et interprétation des lois. Québec: Éditeur officiel, 1978.

APPEAL from trial judgment (Canada v. St. Lawrence Cruise Lines Inc., [1996] 2 F.C. 371 (1996) 132 D.L.R. (4th) 345; 107 F.T.R. 174 (T.D.)) declaring valid Government Wharves Regulations imposing a charge per passenger solely in respect of cruise vessels engaged in voyages during which the passengers remained on board for at least one night. Appeal allowed.

COUNSEL:

J. Kenrick Sproule and Teresa Cianciaruso for appellant (defendant).

Marie-Louise Wcislo for respondent (plaintiff).

SOLICITORS:

Sproule, Castonguay, Pollack, Montréal, for appellant (defendant).

Deputy Attorney General of Canada for respondent (plaintiff).

The following is the English version of the reasons for judgment rendered by

Décary J.A.: This is an appeal from a judgment of the Trial Division [[1996]] 2 F.C. 371] relating to the validity of certain sections of the Government Wharves Regulations[1] (the Regulations) made under the Public Harbours and Port Facilities Act[2] (the Act). More precisely, the Court must decide whether the Governor in Council had the authority to impose specific charges, calculated on the basis of the number of passengers, in relation solely to cruise vessels engaged “in a voyage during which the passengers are on board the vessel for at least one overnight period” and, in the event that he had such authority, whether the imposition of such charges was discriminatory. The dispute arose out of the refusal of the appellant company to pay the charges in question, as a result of which the Crown brought action in the Federal Court claiming payment of the charges.[3] The Trial Judge declared the impugned sections of the Regulations in issue to be valid and allowed the Crown’s action.

Relevant statutory and regulatory provisions

Before describing the background to these proceedings, it would be worthwhile to reproduce the relevant provisions of the Act and the Regulations. The sections or portions of sections of the Regulations the validity of which the appellant has challenged are shown in boldface.

Public Harbours and Port Facilities Act

INTERPRETATION

2. In this Act,

…

“vessel” includes every description of ship, boat or craft used or capable of being used solely or partly for marine navigation without regard to method or lack of propulsion, a dredge, a floating elevator, a floating home, an oil-rig, a sea-plane, a raft or boom of logs or lumber and an air cushion vehicle.

NATIONAL PORTS POLICY

3. (1) It is hereby declared that the objective of the national ports policy for Canada is to create a system of public harbours that

(a) is an effective instrument of support for the achievement of Canadian international trade objectives and of national, regional and local economic and social objectives;

(b) is efficient;

(c) provides accessibility and equitable treatment in the movement of goods and persons to users of Canadian ports; and

(d) is coordinated with other marine activities and surface and air transportation systems.

(2) It is further declared that achievement of the objective of the national ports policy requires

(a) the administration, on a regional scale, of public harbours and public port facilities within a national administrative system; and

(b) the establishment of consultative bodies to provide advice for the purposes of the planning and development of port policy in Canada.

4. It is the responsibility of the Minister to undertake the necessary measures to achieve the objective of the national ports policy, including the planning, development, direction, administration and maintenance of public harbours and public port facilities.

…

REGULATIONS

12. (1) The Governor in Council may make regulations for the management, control, development and use of any public harbour or public port facility, including regulations

…

(i) for the imposition and collection of rates or tolls on vehicles, vessels and persons coming onto or into or using any public harbour or public port facility and on goods or cargoes landed from or shipped on board those vessels, transhipped by water within the limits of any public harbour or stored on or moved across any public port facility;

(j) prescribing the fee or charge to be paid for the use of any public harbour or any public port facility and for any service provided thereat by the Minister;

…

PAYMENT OF RATES

13. (1) The rates, tolls, fees or other charges imposed or prescribed by regulation in respect of a vessel or its cargo shall be paid by the master or person in charge of the vessel, without prejudice to any recourse the master or that person may have by law against any other person for the recovery of the amounts so paid, but the Minister may demand and recover those rates, tolls, fees or other charges from the owner or agent of the vessel or the owner, consignee or shipper of the cargo or his agent.

(2) In the case of any person using a public harbour or public port facility, the rates, tolls, fees and other charges are payable by that person.

(3) The rates, tolls, fees and other charges payable pursuant to this Act may be recovered as a debt, with full costs of suit, in any court of competent jurisdiction.

Government Wharves Regulations, as amended.

Interpretation

2. In these Regulations,

…

“cruise vessel” means a vessel carrying passengers for a fare where the vessel is engaged in a voyage during which the passengers are on board the vessel for at least one overnight period, but does not include a ferry; [SOR/86-493, s. 1]

…

Wharfage, Berthage, Storage

and Other Charges

25. (1) Subject to the Act and these Regulations, the charges on goods and vessels become due at the rates prescribed in the schedule,

(a) in respect of goods, when the goods are placed on a wharf, loaded or unloaded at a wharf or conveyed across, along, over or under a wharf; and

(b) in respect of a vessel, when it is

(i) moored to a wharf,

(ii) occupying a berth or any space at or near a wharf, or

(iii) secured in any manner whatever to a vessel that is subject to berthage.

(2) The person in charge of a vessel carrying cargo shall, in respect of goods landed or taken on board that vessel at a wharf, pay the wharfage due on those goods.

(3) The person in charge of a vessel that normally carries cargo shall, as soon as possible after the vessel has moored or taken berth at a wharf, give a report under his signature to the wharfinger listing

(a) the name of the vessel;

(b) the length of the vessel;

(c) the wharf visited;

(d) the time of arrival of the vessel at the wharf and its estimated time of departure from the wharf;

(e) the description and weights of all goods landed or taken on board; and

(f) in the case of a ferry vessel, the number and description of motor vehicles landed or taken on board.

…

(3.1) The master or person in charge of a cruise vessel shall, as soon as possible after the vessel

(a) berths at a public port facility and embarks or disembarks passengers,

(b) embarks passengers from a public port facility, directly or by lighter, or

(c) disembarks passengers to a public port facility, either directly of by lighter,

provide to the wharfinger a statement setting out the number of passengers carried on board that vessel. [SOR/86-493, s. 3]

…

26.1 (1) In addition to any other charges payable under these Regulations, the cruise vessel charge described in column I of item 1 of Schedule VII is payable in an amount determined by multiplying the number of units of that item, using the relevant unit basis set out in column II of that item, by the relevant rate set out in column III of that item.

(2) Subject to subsection (3), the cruise vessel charge referred to in subsection (1) is payable in respect of a cruise vessel for each public port facility used where

(a) the cruise vessel has berthed at a public port facility and embarks or disembarks passengers;

(b) passengers embark the cruise vessel from that facility, either directly or by lighter; or

(c) passengers disembark from the cruise vessel to that facility, either directly or by lighter.

(3) Where a cruise vessel embarks passengers from or disembarks passengers to any public port facility more than once during a voyage, the cruise vessel charge shall be payable only once for that voyage in respect of that public port facility. [SOR/86-493, s. 5]

…

28. No berthage charge is payable in respect of any vessel that is

(a) not engaged in trade and that is owned by Her Majesty in right of a province or by the government of a foreign country;

(b) exempt from the payment of berthage charges by the terms of any agreement between Canada and any foreign country; or

(c) a fishing vessel berthed at a public port facility solely for the purpose of loading supplies, including fish bait, or unloading the vessel’s catch of fish. [SOR/86-493, s. 6]

…

SCHEDULE VII

(Section 26.1)

other charges

(Effective Avril 1, 1987)

	Column I	Column II	Column III
Item	Description	Unit Basis	Rate
1.	Cruise vessel...	passenger on board	$3.00

[SOR/86-493, s. 9]

The facts

I shall reduce the facts, which are not really in dispute, to their simplest form.

The appellant operates a cruise service travelling among Kingston, Ottawa, Montréal and Québec. The cruises it offers last for relatively long periods, in that the passengers spend at least one night on board. Its vessels stop along the way at a number of ports, including Kingston, where they use the Crawford Dock. On days when its vessels stop at the Crawford Dock to embark or disembark passengers, it berths at the dock at about 2:00 p.m. and leaves at about 7:00 p.m. Between 1988 and 1995, the cruises took place on board the Canadian Empress, which has a capacity of 66 passengers; between 1990 and 1992, cruises were also offered on the Victorian Empress, whose passenger capacity does not appear in the record. In 1994, for example, the cost of a four or five-night cruise ranged from $860 to $1,370.

In 1986, the Governor in Council amended the Regulations to impose a charge of $3 per passenger solely in respect of cruise vessels that were engaged “in a voyage during which the passengers are on board the vessel for at least one overnight period”. The amount of the charge is set out in Schedule VII to the Regulations, and has fluctuated over the years.

The Minister of Transport (the Minister) is relying on this amendment to the Regulations in demanding payment from the appellant of $60,937.12 in respect of the period from 1988 to 1995; that figure corresponds to the number of passengers who used the Crawford Dock multiplied by the amount of the charge payable. The amount in question has been paid into court, pending the decision of this Court.

The evidence shows that during the years in issue other cruise vessels, including the Island Queen, which has a capacity of 300 passengers, and the Island Belle, which has a smaller capacity, offered only day cruises and used the Crawford Dock in the same manner, for the same purposes and more often than the appellant’s vessels, but did not pay the charges set out in Schedule VII since their passengers did not spend any nights on board during their cruise.

The evidence further shows that the appellant’s vessels did not berth at the Crawford Dock during the night and that all cruise vessels paid the berthage charges set out in the Regulations, regardless of whether the cruise was for one day, as in the case of the Island Queen, or several days, as in the case of the appellant’s vessels. These berthage charges were established on the basis of the length of the vessel and the number of days or fractions of days during which the vessel was berthed.

Lastly, it is common ground, based on the documents entered in evidence by consent, that the objective of the Governor in Council in imposing charges in respect of cruises that included at least one night on board was to generate revenue regardless of the specific manner in which passengers used harbour facilities, and that the Governor in Council had targeted these cruises because the charges imposed were not a “significant portion” of the cost of their cruise. The following documents are particularly relevant:

—  a letter from the Minister of Transport dated April 10, 1986, in response to a letter written by the president of the appellant company, Mr. Clark:

Please inform Mr. Clark that the proposed increases in harbour fees and the introduction of a Cruise Vessel Passenger Charge are required to reflect the rising costs of providing the public harbours and ports infrastructure. They will also add to the level of cost recovery for public harbours and ports, which is part of the federal government’s deficit reduction exercise.

As a result of consultations with users and departmental officials, the proposals have been revised. The new Cruise Vessel Passenger Charge will not come into effect until 1 April 1987, and will be $3.00 per passenger. This is to allow time to reflect the charge in cruise vessel fares for the 1987 season. The charge does not apply to day cruises or ferry operations, and it is assessable when a vessel uses a public port facility to embark or disembark passengers.

You can assure Mr. Clark that his operation and his particular concerns were taken into account in the development of this passenger charge. In fact, certain modifications were made to the wording to ensure that a vessel leaving from and returning to the same public port facility, such as Kingston, would pay the charge only once at that port.

I have been informed that the Department of Fisheries and Oceans is not intending to introduce a cruise vessel passenger charge …. [A.B., at pp. 22-23.]

—  A letter from the Canadian Coast Guard dated some time in February 1989, in response to a letter from Mr. Clark:

As you have indicated, the passenger charge represents a charge for the use of the facility, not unlike wharfage and berthage charges historically reflected in the tariff schedule. Revenues from public port tariffs contribute to the upgrading and restoration of facilities to make them safe for vehicle and passenger traffic associated with cruise vessel activity. Day cruises were specifically exempted from the cruise vessel passenger charge to avoid the situation where the $3.00 charge would represent a significant portion of the overall fares charged to passengers. Apart from this exemption for day cruises, overnight cruise vessels and tour operations across the country are subject to the charge. Day cruises continue to be subject to all other public port tariffs such as berthage. [A.B., at pp. 26-27.]

—  Transport Canada’s accounts receivable, describing the charges for which payment was sought as “passenger fees” (droits imposés au passager).

The Trial Judge rejected the appellant’s arguments relating to the invalidity of the impugned sections. He stated that he was of the view that the Regulations did not violate the principle of equitable treatment set out in paragraph 3(1)(c) of the Act, since all overnight cruise vessels were affected; that the purpose of the Governor in Council’s action, which was to raise revenue and reduce the deficit, was a valid purpose; and that the distinction between long-term cruises and short-term cruises was not discriminatory. With respect, I believe that the Trial Judge erred and that he should have dismissed the Crown’s action.

A procedural question

At the hearing, the Court queried about the power of the Crown in this instance to bring action against the owner of the vessels rather than the passengers, to recover the unpaid charges. When the charges claimed are “in respect of a vessel”, subsection 13(1) of the Act provides that they may be recovered from the owner of the vessel or the owner of the cargo, while “[i]n the case of any person using a public harbour or public port facility”, subsection 13(2) provides that the charges “are payable by that person”.

Since, after reserving judgment to consider the matter, I have reached the conclusion that the charges in issue could not be recovered, I need not decide whether, in the event that the charges could be recovered, the Crown was right to consider the charges claimed to be charges in respect of the vessel and, accordingly, to bring action against the owner of the vessel.

The substantive issue

The first thing that must be done when the validity of a regulation has been challenged is to construe the enabling statute. We must be careful not to apply the principles of interpretation laid down in the case law to the regulations without first considering the scope of the specific grant of regulatory power made by the legislation in question. As Lord Reid observed in Padfield v. Minister of Agriculture, Fisheries and Foods:[4]

Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.

In Roncarelli v. Duplessis,[5] Rand J. wrote:

In public regulation of this sort there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute …. [T]here is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislature cannot be so distorted.

As well, in Montréal (City of) v. Arcade Amusements Inc. et al.,[6] Beetz J. adopted the following observation by Louis-Philippe Pigeon in Rédaction et interprétation des lois:[7]

[translation] Another important observation has to be made regarding the regulatory power. It is the following: the power to make regulations does not include a power to adopt discriminatory provisions. In other words, unless the legislation authorizing it states the contrary a regulation must apply to everyone in the same way. If the intent is to make a distinction, this must be stated.

What does the Public Harbours and Port Facilities Act say, what does it permit, in this case?

Section 3 of that Act defines “national ports policy” in terms of four roles or characteristics, including the following, at paragraph 3(1)(c):

3. (1) …

(c) provides accessibility and equitable treatment in the movement of goods and persons to users of Canadian ports; and

This legislative objective is exceptional. It would seem that there are only two other statutes in the body of federal legislation that speak in these terms, and curiously, those two statutes also relate to “national ports policy”. They are the Canada Ports Corporation Act[8] and the Harbour Commissions Act.[9] Even the National Transportation Act, 1987[10] does not use this language, although paragraph 3(1)(e) of that Act conveys a similar concept:

3. (1) …

(e) each carrier or mode of transportation, so far as practicable, bears a fair proportion of the real costs of the resources, facilities and services provided to that carrier or mode of transportation at public expense,

I note that the Aeronautics Act[11] contains no similar or analogous provision.

Given that Parliament has taken exceptional pains to add this requirement of equitable treatment to the text of the Act itself, I deduce from this that it intended to give users of Canadian harbours broader rights than the rights that stem from the implied requirement of non-discrimination which the courts generally read into enactments.

We were told by counsel for the respondent that the impugned regulations were made with the objective of raising revenue and reducing the deficit. She added, at the hearing, that the charges are imposed on the appellant company, regardless of what particular use it makes of the port facilities: it is not, she said, a user fee. The objective of the Governor in Council is not in dispute in the instant case. The issue here is therefore not what motives guided the Governor in Council,[12] but rather whether the objective is consistent with what the enabling statute authorizes.

The objective of raising revenue and reducing the deficit is certainly permitted by paragraphs 3(1)(a) and (b), and it is at least implicitly recognized in the fact that the Minister is granted general powers of administration (section 4) and development (subsection 12(1)). However, any action taken with that objective must be taken in the manner permitted by the Act, and the Act does not authorize it unless it is in connection with the use made of the facilities (I would note that it is common ground in this case that the charges are in respect of the use of the facilities rather than in respect of coming into port). While the amount of the charges need not reflect the exact cost of the use made of the facilities,[13] the charges imposed must be related to a particular use and users must be treated equitably.

I am of the view that imposing charges solely on overnight cruise vessels that make the same use of port facilities as do day cruisers does not comply with the principle of equitable treatment, which I interpret to mean that where use is equal, and absent any other valid objective which would permit a distinction to be made, all vessels in the same class should be treated equally.[14] I find it hard to see why, for example, if the use of port facilities is equal, a sardine fishing boat should not receive the same treatment as a lobster fishing boat, or berthing fees for two yachts should vary based on their respective market values. The objectives defined in subsection 3(1) of the Act are complementary, as the word “and” indicates. Certainly the Minister may impose fees to raise revenue and reduce the deficit, but in so doing he must “provide equitable treatment” to cruise vessels. In this case, the impugned provisions are inconsistent with that objective.

In deciding that the Act does not authorize the Governor in Council to distinguish between overnight cruise vessels and day cruisers, as he did in this case, and accordingly that the impugned provisions are invalid, I am actually adopting the same approach as led the Supreme Court of Canada, in Alaska Trainship,[15] and Denault J., in Great Lakes Pilotage Authority Ltd. v. Misener Shipping Ltd.,[16] to strike down certain regulations in respect of pilotage.

In my view, this is sufficient to dispose of the matter. Counsel for the appellant invited us to decide that the Act does not permit the Governor in Council to define the word “vessel”, by regulation, otherwise than as that word is defined in the Act, and that the Regulations cannot contain provisions that apply to certain classes of vessels and not to others. I am in agreement with the first of these propositions, but not with the second. The Regulations could not include in “vessel” a class that was not included in the definition of the word “vessel” set out in the Act; in this instance, the argument is academic since in the English version Parliament has used the word “includes” rather than “means”, and since the definition given, “every description of ship, boat or craft”, is sufficiently broad to encompass cruise vessels. On the other hand, it is implicitly necessary, for the administration of the Act, that it be possible for the Regulations to distinguish among certain classes of vessels. The objective defined in paragraph 3(1)(a) of the Act, I think, allows special status to be conferred on fishing vessels, for example, as paragraph 28(c) of the Regulations does, and the objective defined in paragraph 3(1)(d) would also, in my view, allow for ferries, which are connected with the ground transportation system, to be treated as a class apart. I do not share the opinion of counsel for the appellant that an express statutory provision is required in order for classes or sub-classes to be established by regulation.[17]

In closing, I would like to comment briefly on certain decisions of the Federal Court on which the respondent and the Trial Judge relied; they are: Gulf Trollers Assn.;[18] Aerlinte Eireann Teorante v. Canada (Minister of Transport);[19] New Brunswick Broadcasting Co., Limited v. Canadian Radio-Television and Telecommunication Commission;[20] and Airport Taxicab (Malton) Association v. Canada (Minister of Transport).[21]

In Gulf Trollers,[22] public notices were issued by fishery officers under the Fisheries Act [R.S.C. 1970, c. F-14] imposing restrictions on fishermen engaged in commercial salmon fishing that were not imposed on sport fishermen. The applicable Act contained no requirement of equitable treatment, and the case was decided on a point of constitutional law rather than administrative law. In any event, the case did not address the possibility of establishing distinctions within a class, for example sport fishermen.

In Aerlinte,[23] the Aeronautics Act [R.S.C. 1970, c. A-3] then in force did not guarantee equitable treatment. The Air Services Fees Regulations [C.R.C., c. 5] established different landing fees for domestic flights, international flights and transoceanic flights; the fees were established on the basis of the weight of the aircraft and the evidence had established that the costs of building and maintaining runways and providing passenger services were higher in the case of transoceanic flights; the Court found that, on the facts, there was no discrimination. The respondent relied on a passage from the reasons of the Court, at page 228, which is mere obiter, and which is, moreover, of debatable merit. At bottom, that decision supports the appellant’s position, in that it confirms that the Governor in Council may determine the amount of the fees he imposes on the basis of the use made of the public facilities in question by a carrier and its passengers, without being guilty of discrimination.

In New Brunswick Broadcasting,[24] in which this Court recognized that the CRTC had the power to establish classes of persons who are entitled to use frequencies, the Broadcasting Act [R.S.C. 1970, c. B-11] contained a provision that gave the Commission the power to establish such classes. That decision is of little use to us here.

In Airport Taxicab,[25] the impugned regulations, which had been made under the Department of Transport Act, [R.S.C. 1970, c. T-15] permitted separate permits to be issued to taxi drivers and limousine drivers. The regulations had been made with the aim of ending a war that had been going on between the drivers in question. Section 25 of the Act in question gave the Governor in Council the power to “make such regulations as he deems necessary for the management, maintenance, proper use and protection”. The Act contained no requirement of equitable treatment. Rouleau J. concluded, first, that the purpose of the statutory provisions was, inter alia , to allow the Crown to limit, control and supervise the conduct of commercial activity carried on within the boundaries of airports, and that the impugned regulations reflected that objective. Second, he concluded that there was nothing in the evidence to indicate unequal or discriminatory treatment. I do not see how this decision can help the respondent.

In short, the result of these proceedings is dictated by the fact that paragraph 3(1)(c) of the Act contains an exceptional requirement of equitable treatment. Where use is equal, and absent any other valid objective that might justify a distinction, the Governor in Council may not target those vessels within a single class of vessels that are most likely to generate revenue for it, or from which it is easiest for it to collect revenue. In reality, the charges imposed on the appellant in the instant case amount to the same thing as a tax on the income of a business engaged in an activity that the Minister of Transport considers to be a luxury. The Public Harbours and Port Facilities Act quite simply does not allow the Minister of Transport to substitute himself in this respect for the Minister of Finance.

Disposition

I would allow the appeal, dismiss the action by Her Majesty the Queen, declare the definition of “cruise vessel” in section 2 of the Government Wharves Regulations as well as subsection 25(3.1), section 26.1 and, consequently, Schedule VII to the Regulations, to be invalid, and I would award the appellant its costs on appeal and at trial.

Desjardins J.A.: I concur.

Chevalier D.J.: I concur.

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