Adventure Tours Inc. v. St. John's Port Authority et al., (2014) 454 F.T.R. 7 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: April 10, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 454 F.T.R. 7 (FC);2014 FC 420

Adventure Tours Inc. v. Port Authority (2014), 454 F.T.R. 7 (FC)

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Temp. Cite: [2014] F.T.R. TBEd. MY.008

Adventure Tours Inc. (applicant) v. St. John's Port Authority (respondent) and Association of Canadian Port Authorities (intervenor)

(T-696-13; 2014 FC 420; 2014 CF 420)

Indexed As: Adventure Tours Inc. v. St. John's Port Authority et al.

Federal Court

Strickland, J.

May 5, 2014.

Summary:

The St. John's Port Authority (SJPA) refused to grant Adventure Tours Inc. a licence to conduct tour boat operations from Authority managed property for the 2013 tourist season. Adventure Tours applied for judicial review, arguing that SJPA lacked legal authority to require Adventure Tours to have a licence.

The Federal Court dismissed the application.

Constitutional Law - Topic 5950

Federal jurisdiction (s. 91) - Navigation and shipping - General - [See second Shipping and Navigation - Topic 7908 ].

Shipping and Navigation - Topic 7908

Harbours, docks, piers, canals, locks and bridges - Regulations - Licence for use of - The St. John's Port Authority (SJPA) refused a licence under the Canada Marine Act (CMA) to permit Adventure Tours Inc. (ATI) to operate seasonal tour boat operations from Authority-managed property - Adventure Tours applied for judicial review, arguing that SJPA lacked legal authority to require that ATI be licensed - The Federal Court, considering the CMA, the Port Authorities Operations Regulations and SJPA's letters patent, held that the SJPA had the authority to require tour boat services operating from port-managed property to be licensed - The licencing authority in the CMA was not ultra vires s. 91(10) of the Constitution Act (jurisdiction over shipping and navigation) merely because Parliament had enacted other legislation regarding shipping and navigation - Nor did the legislation unlawfully interfere with the common law public right of navigation - See paragraphs 48 to 88.

Shipping and Navigation - Topic 7908

Harbours, docks, piers, canals, locks and bridges - Regulations - Licence for use of - The St. John's Port Authority (SJPA) refused a licence under the Canada Marine Act (CMA) to permit Adventure Tours Inc. (ATI) to operate seasonal tour boat operations from Authority-managed property - ATI applied for judicial review, arguing that because Parliament had exercised its jurisdiction over navigation and shipping under s. 91(10) of the Constitution Act by enacting the Canada Shipping Act, any aspect of the CMA which touched on those areas was ultra vires - The Federal Court held that Parliament was not restricted to enacting only one piece of legislation that concerned matters pertaining to shipping and navigation - If it chose to address aspects of that subject matter in different legislation then, so long as there was no conflict in application, it was free to do so - The Canada Shipping Act, 2001 was the primary piece of legislation by which Parliament addressed issues concerning shipping and navigation - However, that did not limit its ability to also address other aspects of navigation and shipping in other legislation - See paragraphs 74 to 76.

Shipping and Navigation - Topic 7908

Harbours, docks, piers, canals, locks and bridges - Regulations - Licence for use of - Section 27(2)(a) of the Port Authorities Operations Regulations (Canada Marine Act), provided that on receipt of a request for an authorization to conduct an activity in a port, along with payment of the applicable fee, if any, and the information required under s. 28(2), the port authority "shall" give its authorization - The Federal Court held that the obligation imposed by the word "shall" in s. 27(2) did not oblige a port authority to provide its authorization upon receipt of any and all requests - Rather, s. 27 had to be read in whole - Section 27(1) stated that a port authority may give a written authorization to conduct a described activity - Section 27(2) defined the port authority's options in that regard - It could either give its authorization, refuse to give its authorization or place conditions on an authorization, or, refuse authorization in the event of a failure to obtain adequate or any insurance or security - Section 27(2) did not compel a port authority to issue an authorization nor did it serve to render s. 27(1) of no effect - See paragraph 70.

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See third Shipping and Navigation - Topic 7908 ].

Words and Phrases

Shall - The Federal Court discussed the meaning of the word "shall" as it appeared in s. 27(2) of the Port Authorities Operations Regulations, SOR/2000-55 - See paragraphs 67 to 70.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 18].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 19].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 19].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 20].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 22].

Burrardview Neighbourhood Association v. Vancouver (City) et al., [2007] 2 S.C.R. 86; 362 N.R. 208; 241 B.C.A.C. 1; 399 W.A.C. 1; 2007 SCC 23, refd to. [para. 22].

Westshore Terminals Ltd. v. Vancouver Port Authority (2001), 201 F.T.R. 286; 2001 FCT 312, refd to. [para. 29].

Air Canada v. Toronto Port Authority et al. (2011), 426 N.R. 131; 2011 FCA 347, refd to. [para. 34].

North Vancouver (City) v. Ship Seven Seas S.R. et al. (2000), 192 F.T.R. 203 (T.D.), refd to. [para. 39].

Iveagh v. Martin, [1961] 1 Q.B. 232. refd to. [para. 39].

West Kelowna (District) v. Newcombe, [2013] B.C.T.C. Uned. 1411; 2013 BCSC 1411, refd to. [para. 39].

Woods v. Esson (1884), 9 S.C.R. 239, refd to. [para. 40].

PRTI Transport Inc. v. Vancouver Port Authority (1999), 178 F.T.R. 310 (T.D.), refd to. [para. 65].

Pro-West Transport Ltd. et al. v. Canada (Attorney General) et al. (2006), 296 F.T.R. 289; 2006 FC 881, refd to. [para. 65].

Statutes Noticed:

Canada Marine Act, S.C. 1998, c. 10, sect. 28 [para. 54]; sect. 62 [para. 57].

Canada Marine Act Regulations (Can.), Port Authorities Operations Regulations, SOR/2000-55, sect. 27 [para. 5].

Constitution Act, 1867, sect. 91(10) [para. 22].

Port Authorities Operations Regulations - see Canada Marine Act Regulations (Can.).

Counsel:

Douglas W. Lutz, for the applicant;

Jamie M. Smith, Q.C., for the respondent;

Sally Gomery and Stephen Nattrass, for the intervenor.

Solicitors of Record:

Muttarts Law Firm, Kentville, Nova Scotia, for the applicant;

Smith Law Offices, St. John's, Newfoundland, for the respondent;

Norton Rose Fulbright Canada LLP, Ottawa, Ontario, for the intervenor.

This application was heard in St. John's, Newfoundland and Labrador, on April 10, 2014, before Strickland, J., of the Federal Court, who delivered the following decision on May 5, 2014.