Pro-West Transport Ltd. et al. v. Canada (Attorney General) et al., (2006) 296 F.T.R. 289 (FC)

• Judge: Teitelbaum, J.
• Court: Federal Court (Canada)
• Case Date: June 27, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 296 F.T.R. 289 (FC);2006 FC 881

Pro-West Transport Ltd. v. Can. (A.G.) (2006), 296 F.T.R. 289 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. AU.009

Pro-West Transport Ltd. and Team Transport Services Ltd. (applicants) v. Attorney General of Canada and Vancouver Port Authority (respondents)

(T-1453-05; 2006 FC 881)

Indexed As: Pro-West Transport Ltd. et al. v. Canada (Attorney General) et al.

Federal Court

Teitelbaum, J.

July 14, 2006.

Summary:

Pursuant to s. 47 of the Canada Transportation Act, the Governor in Council (GIC) issued an amended Order-in-Council to resolve a work disruption involving trucking companies and truckers at the Port of Vancouver. The order required the Vancouver Port Authority to impose a licensing system for port access, requiring all trucking companies to be bound for two years by a memorandum of agreement between them and the truckers. Two trucking companies applied for judicial review. At issue was the validity of the Order-in-Council, particularly whether it was within the GIC's jurisdiction under s. 47. The trucking companies also submitted that the Authority's power to implement the licensing system was within the scope of the judicial review application.

The Federal Court dismissed the application, finding that the Order-in-Council was within the GIC's jurisdiction. Judicial review was limited to the validity of the Order-in-Council. A review of the Authority's decision to implement a licensing system was outside the scope of the application. In any event, the Authority had jurisdiction, independent of the Order-in-Council, to impose the licensing system.

Crown - Topic 545

Orders-in-Council - Judicial review - Pursuant to s. 47 of the Canada Transportation Act, the Governor in Council (GIC) issued an amended Order-in-Council to resolve a work disruption involving trucking companies and truckers at the Port of Vancouver - Two trucking companies applied for judicial review - At issue was the validity of the Order-in-Council, particularly whether it was within the GIC's jurisdiction under s. 47 - The Federal Court stated that the fact that the issues involved were "jurisdictional" did not automatically dictate that the standard of review was correctness - However, after applying the pragmatic and functional analysis, the court was satisfied that the standard of review was correctness - See paragraphs 24 to 33.

Shipping and Navigation - Topic 7908

Harbours, docks, piers, canals, locks and bridges - Regulation - Licence for use of - The Federal Court opined that the Vancouver Port Authority had authority, under the Canada Marine Act and the Authority's Letters Patent, to impose a licensing system on trucking companies regulating access to port facilities - The validity of the licensing system was not reliant upon the validity of the Order-in-Council in which it was included, as the Authority had jurisdiction, independent of the Order-in-Council, to impose the licensing system - See paragraphs 34 to 43.

Statutes - Topic 5517

Operation and effect - Delegated legislation - Orders-in-Council - Judicial review - [See Crown - Topic 545 ].

Statutes - Topic 5518.1

Operation and effect - Delegated legislation - Orders-in-Council - Validity - Time limits - Section 47 of the Canada Transportation Act empowered the Governor in Council (GIC) to prevent "extraordinary disruptions" in the national transportation system - The GIC issued an amended Order-in-Council to resolve a work disruption involving trucking companies and truckers at the Port of Vancouver - The order required the Vancouver Port Authority to impose a licensing system for port access, requiring all trucking companies to be bound for two years by a memorandum of agreement between them and the truckers - Two trucking companies applied for judicial review, submitting that the Order-in-Council was ultra vires the GIC's jurisdiction under s. 47 - The GIC allegedly exceeded its jurisdiction because s. 47(3) made any order temporary (i.e., order to have effect for no more than 90 days after the order was made) and the memorandum of agreement imposed had a two year term - The Federal Court held that the Order-in-Council was valid - The 90 day time limit in s. 47(3) applied to the period of time that parties bound by an Order-in-Council had to take steps under it, not to the agreements that resulted from such actions - Although any Order-in-Council could not extend beyond the 90 day period, any initiative or action taken under the Order-in-Council was not subject to the 90 day period - See paragraphs 44 to 63.

Cases Noticed:

Thorne's Hardware Ltd. v. Canada - see Irving Oil Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board.

Irving Oil Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 21].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 24].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 25].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 26].

Canadian Pacific Railway Co. v. Canadian Transportation Agency et al., [2003] 4 F.C. 558; 307 N.R. 378; 2003 FCA 271, refd to. [para. 29].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 2004 SCC 28, refd to. [para. 32].

Winnipeg (City) v. Morguard Properties Ltd. et al., [1983] 2 S.C.R. 493; 50 N.R. 264; 25 Man.R.(2d) 302, refd to. [para. 36].

Nanaimo (City) v. Rascal Trucking Ltd. et al., [2000] 1 S.C.R. 342; 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298, refd to. [para. 36].

R. v. Sharma (D.), [1993] 1 S.C.R. 650; 149 N.R. 161; 61 O.A.C. 161, refd to. [para. 36].

PRTI Transport Inc. v. Vancouver Port Authority (1999), 178 F.T.R. 310 (T.D.), refd to. [para. 37].

Canadian Airlines Corp., Re, [2000] 10 W.W.R. 269; 265 A.R. 201; 2000 ABQB 442, refd to. [para. 55].

Airline Industry Revitalization Co. v. Air Canada, [1999] O.T.C. 57; 45 O.R.(3d) 370 (Sup. Ct.), refd to. [para. 56].

Air Canada v. Airline Industry Revitalization Co., [1999] Q.J. No. 4880 (S.C.), refd to. [para. 57].

Statutes Noticed:

Canada Marine Act, S.C. 1998, c. 10, sect. 4 [para. 38].

Canada Transportation Act, S.C. 1996, c. 10, sect. 5 [para. 30]; sect. 47 [para. 20].

Federal Court Rules, 1998, rule 302 [para. 18]; rule 303 [para. 14].

Counsel:

Donald J. Jordan, Q.C., for the applicants;

Lorne Lachance and Cindy Mah, for the respondent, Attorney General of Canada;

Howard L.A. Ehrlich and Taryn Mackie, for the respondent, Vancouver Port Authority.

Solicitors of Record:

Taylor, Jordan, Chafetz, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, for the respondent, Attorney General of Canada;

Bull, Housser & Tupper LLP, for the respondent, Vancouver Port Authority.

This application was heard on June 27, 2006, at Vancouver, B.C., before Teitelbaum, J., of the Federal Court, who delivered the following judgment on July 14, 2006.