Pro-West Transport Ltd. et al. v. Canada (Attorney General) et al., 2007 FCA 206

• Judge: Décary, Linden and Sexton, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 28, 2007
• Jurisdiction: Canada (Federal)
• Citations: 2007 FCA 206;(2007), 367 N.R. 57 (FCA)

Pro-West Transport Ltd. v. Can. (A.G.) (2007), 367 N.R. 57 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. JN.034

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

(A-364-06; 2007 FCA 206)

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

Federal Court of Appeal

Décary, Linden and Sexton, JJ.A.

May 28, 2007.

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, in a judgment reported 296 F.T.R. 289, 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. The trucking companies appealed. Subsequently, a new licensing system was implemented by Regulation. The Authority submitted that the appeal was now moot.

The Federal Court of Appeal dismissed the appeal on the ground that it was now moot. The licensing system and Order-in-Council under attack no longer existed (no live controversy). There was no reason for the court to exercise its discretion to resolve the moot issue.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See Statutes - Topic 5518.1 ].

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 - The trucking companies appealed - Subsequently, a new licensing system was implemented by Regulation - The Authority submitted that the appeal was now moot - The Federal Court of Appeal dismissed the appeal on the ground that it was now moot - The licensing system and Order-in-Council under attack no longer existed (no live controversy) - There was no reason for the court to exercise its discretion to resolve the moot issue.

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 3].

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. 8].

Counsel:

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

Judith Bowers, Q.C., Lorne Lachance, Howard Ehrlich and Taryn Mackie, for the respondents.

Solicitors of Record:

Taylor Jordan Chafetz, Vancouver, B.C., for the appellants;

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

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

This appeal was heard on May 28, 2007, at Vancouver, B.C., before Décary, Linden and Sexton, JJ.A., of the Federal Court of Appeal.

On May 28, 2007, Sexton, J.A., delivered the following judgment orally for the Court of Appeal.