Docket: T-374-15
Citation:
2016 FC 645
Ottawa, Ontario, June 9, 2016
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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0769449 B.C.
LTD.
dba KIMBERLY
TRANSPORT
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Applicant
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and
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VANCOUVER
FRASER PORT AUTHORITY
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant is a trucking and drayage company
whose licence to access the premises of the Vancouver Fraser Port Authority was
terminated in August 2014 for alleged violations of its licence agreement with
the Port. The Applicant alleges bias in the decision-making process that
resulted in termination of its licence and that the termination decision was
unreasonable. The Respondent argues, amongst other things, that this
application is now moot because the jurisdiction to grant licences to access the
Port’s premises has been transferred by statute to another administrative body.
I.
Background
[2]
The Applicant, 0769449 B.C. Ltd, carries on
business as Kimberly Transport [Kimberly]. Kimberly is a multi-service trucking
company headquartered in Delta, BC, whose president and CEO is Thomas Johnson.
Mr. Johnson began as a truck driver in 1995, becoming an independent owner in
1997 and later started Kimberly with his wife. Over time, the company grew its
operations and expanded into drayage work at the Port. In 2005, Kimberly
acquired highway trucks and began transporting goods in British Columbia and to
Alberta and Saskatchewan. By 2009, Kimberly owned a 25,000 square foot
warehouse, and had over 30 company trucks, 150 container chassis trailers,
three crane trucks, 15 flat deck trailers, and low bed equipment.
[3]
In 2005, there was a labour dispute at the Port.
After this dispute ended, the Port implemented a more comprehensive licensing
system, known as the Truck Licensing System [TLS], for trucking companies accessing
the Port’s premises. Kimberly entered into a licence agreement under the TLS so
its container trucks could access the Port’s premises; this agreement was
renewed annually up until the time Kimberly’s licence was terminated by letter
dated August 22, 2014.
[4]
On January 1, 2008, the Vancouver, Fraser River,
and North Fraser Port Authorities amalgamated to form the Vancouver Fraser Port
Authority, carrying on business as Port Metro Vancouver [PMV]. Kimberly managed
its trucks and licences through PMV’s Pacific Gateway Portal website. This
Portal allowed TLS licensees such as Kimberly to transfer licences among trucks
accessing PMV premises and to update licence plate numbers and truck unit
numbers. The Portal also enabled a licensee, subject to PMV’s approval, to add
new trucks to the licensee’s fleet.
[5]
Kimberly never obtained licences for its entire
fleet of trucks. Since Kimberly’s renewals for trucks in the TLS fell at the
end of October, Mr. Johnson sometimes delayed paying the $300 per truck fee
until Kimberly’s business picked up. Mr. Johnson says that this was regularly
allowed by PMV. For the licence agreement between PMV and Kimberly running from
November 1, 2011 to October 31, 2012, Kimberly was approved for 12 trucks; and
for the licence agreement for November 1, 2012 to October 31, 2013, Kimberly
was approved for 14 trucks. For the licence agreement in effect from
November 1, 2013 to October 31, 2014, Kimberly paid for six approved vehicles
on October 28, 2013; and on November 18 and November 20, 2013, Kimberly paid
the fee for two additional trucks, bringing the total approved number of
vehicles for this time period to eight.
[6]
On March 4, 2013, PMV informed Kimberly it had
been selected to take part in a mandatory pilot project to install GPS tracking
units in trucks which accessed PMV premises. Initially, the PMV GPS units were
installed in four Kimberly trucks and were located close to Kimberly’s own GPS
units. Mr. Johnson states that the PMV units looked virtually identical to
those of Kimberly.
[7]
In late February 2014, another labour dispute
erupted at the Port, lasting several weeks. As part of the resolution of this
dispute, PMV reformed the TLS and, after learning of the changes, Kimberly
joined the BC Trucking Association [BCTA]. On March 28, 2014, PMV cancelled the
access of external users, including Kimberly, to the Portal. On April 7, 2014,
PMV informed licence holders under the TLS that there would be a moratorium,
effective immediately, on additional trucks being approved for access to PMV
premises. The moratorium notice stated:
PMV will continue to process pending
applications for new company trucks, if those applications were received prior
to the issuance of this announcement at 3:00 pm, April 7, 2014, and if the
applicant FSO provides evidence that demonstrable investment commitments had
already been made prior to the announcement.
[8]
When this moratorium occurred, two of Kimberly’s
vehicles were in the system but either their renewal had not been completed or
updated insurance information had not yet been submitted. Mr. Johnson indicates
these trucks were in a pending status, but PMV asserts that they had been
rejected and were not pending. In addition, Kimberly was in the process of
acquiring another truck, and had paid for significant engine work on it; the
agreement relating to this truck had been made on April 1 and it was in
Kimberly’s possession on April 2, but the transfer tax form showing transfer of
the truck was dated April 9, two days after the moratorium. Kimberly understood
the moratorium to mean that existing trucks in the system would be processed
for approval and that if there were demonstrable investment commitments to a
truck’s purchase prior to April 7, that truck would also be processed.
[9]
On April 10, 2014, Mr. Johnson attended a BCTA
meeting where he met Greg Rogge, who was the PMV representative chairing the
meeting about changes to the TLS. At the meeting, Mr. Johnson aired his
frustrations about the changing system, and raised the issue of the moratorium
and Kimberly’s trucks which were awaiting renewals. Mr. Johnson claims that Mr.
Rogge assured him that processing Kimberly’s renewals would not be a problem
and promised to look into the matter.
[10]
On May 5, 2014, Mr. Johnson emailed PMV
regarding his conversation with Mr. Rogge. However, on May 7, 2014, PMV advised
Kimberly that its renewal applications were disapproved, stating that these
trucks counted as new additions because the trucks had been out of Kimberly’s
approved fleet since November 2013. Mr. Johnson replied on May 7, requesting
that the applications be processed since the trucks were not new; but on May 9,
2014, PMV again denied the renewals and also denied the new truck as an
addition because it had been purchased on April 9.
[11]
Mr. Johnson states that following the denials of
his renewal requests he sent several emails to PMV, including some he
characterizes as being “somewhat offensive.” On
May 14, 2014, Mr. Johnson received an email from PMV’s legal counsel, Harley
Harris, advising that he would review the matters raised by Mr. Johnson’s
emails and that Kimberly should speak exclusively with Mr. Harris about the
denied renewals. By letter dated May 27, 2014, Mr. Harris informed Kimberly
that the situation concerning the renewal applications and the new truck would
not be revisited.
[12]
On June 20, 2014, Mr. Johnson asked PMV to send
Kimberly a screenshot of all of its approved trucks and their VIN numbers since
external users no longer had access to the Portal to ascertain what trucks were
or were not approved. PMV replied via an email dated June 20, 2014. Mr. Johnson
states that he believed the email showed all nine Kimberly trucks as having
approved status and did not realize at that time there was another approval
column on the far right of the email attachment that required the user to
scroll over to view.
[13]
On June 25, 2014, Mr. Johnson received a notice
from PMV that Kimberly’s licence was suspended, effective immediately, since
three of Kimberly’s trucks which were not approved had accessed PMV property.
Mr. Johnson says there was no warning for this suspension, and when he
attempted to contact PMV he was directed to PMV’s legal counsel. Kimberly
immediately retained legal counsel, and its counsel sent a letter to Mr. Harris,
PMV’s legal counsel, on June 25, 2014. Mr. Johnson claims Kimberly did not
dispute PMV’s GPS data showing access to PMV premises by unapproved Kimberly
trucks because maintenance personnel may have swapped PMV GPS units with
identical-looking Kimberly GPS units.
[14]
Following suspension of Kimberly’s licence, Mr.
Johnson contacted Louise Yako, president and CEO of the BCTA in an attempt to
speak with PMV about the suspension of Kimberly’s licence. However, PMV told
Ms. Yako that it would not meet with them and she should not speak to anyone at
PMV regarding the Kimberly situation.
[15]
On August 22, 2014, PMV emailed a letter to
Kimberly terminating its licence. It is this letter and the reasons for the
decision to terminate Kimberly’s licence which are the subject matter of this
application for judicial review. At the time of this letter, Mr. Johnson had no
idea who was responsible for the decision to terminate Kimberly’s licence.
Subsequently though, after Kimberly’s current legal counsel applied to this
Court for an order of mandamus to compel PMV to disclose the decision-maker’s
identity, PMV revealed that Mr. Rogge had made the decision. Once the
decision-maker’s identity was known, the Court allowed Kimberly an extension of
time to file this application for judicial review in respect of PMV’s
termination decision.
[16]
Subsequent to the decision to terminate Kimberly’s
licence, Kimberly continued to access PMV premises in connection with non-TLS
related drayage of oversized containers and other cargo requiring specialized
drayage equipment. However, a new regulatory framework was enacted subsequent
to the termination of Kimberly’s TLS licence to govern the issuance of licences
under a reformed TLS. Pursuant to the Container Trucking Act, SBC 2014,
c 28, and the Container Trucking Regulation, BC Reg 248/2014, the British
Columbia Container Trucking Commissioner, not PMV, now has the jurisdiction and
authority to issue licences to carry out container trucking services at PMV
premises; PMV retains jurisdiction and authority to issue access agreements in
respect of its premises to companies licenced by the Commissioner pursuant to
the new framework. In a letter from PMVs legal counsel dated November 3, 2015,
PMV advised Kimberly that it was no longer ineligible from applying for a PMV
access agreement if or when it is in a position to secure a TLS licence from
the Commissioner.
II.
Issues
[17]
The Applicant raises several issues, notably as
to: whether Kimberly had a legitimate expectation that PMV would provide a
warning or advise of unauthorized entrances to PMV premises before suspending
or terminating its licence; whether it was reasonable for PMV to conclude there
was an “urgent circumstance” in suspending
Kimberly’s licence; whether Mr. Rogge was a biased decision-maker who should
have recused himself from making the impugned decision; and whether the
decision was reasonable in view of the provisions of the licence agreement.
[18]
However, I agree with the Respondent that the
main issue, indeed in the Court’s view the determinative issue, is whether this
application for judicial review has become moot.
III.
Analysis
[19]
The Applicant concedes that PMV no longer
possesses the statutory authority for issuing licences under the TLS and,
therefore, requests only a declaration that its rights to a fair procedure were
breached in terminating its licence or that an unreasonable decision was made
and it should be set aside. The Applicant says there are immense practical
consequences for it because a determination by the Court that its licence was
unfairly or unreasonably terminated might affect its ability to obtain a TLS
licence from the British Columbia Container Trucking Commissioner.
[20]
The Respondent contends that Kimberly cannot
avoid a determination of mootness merely by seeking declaratory relief. The
Respondent states that intervening events, notably the new regulatory framework
for the issuance of licences under the TLS, have extinguished the once live
controversy between the parties, and that the issues raised by this judicial
review application are not such that they rise to a level of public importance
to make a judicial determination on the merits in the public interest.
[21]
In Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342 at para 15, 57 DLR (4th) 231 [Borowski], the Supreme
Court of Canada stated that the doctrine of mootness “applies
when the decision of the court will not have the effect of resolving some
controversy which affects or may affect the rights of the parties. If the
decision of the court will have no practical effect on such rights, the court
will decline to decide the case.” This involves a two-step analysis: “First it is necessary to determine whether the required
tangible and concrete dispute has disappeared and the issues have become
academic. Second, if the response to the first question is affirmative, it is
necessary to decide if the court should exercise its discretion to hear the
case” (Borowski at para 16).
[22]
Accordingly, in a case where there is “no longer a live controversy or concrete dispute” the
case can be determined to be moot (Borowski at para 26). Even if a case
may be moot because there is no longer a live controversy or concrete dispute,
it is nevertheless necessary for the Court to determine whether it should
exercise its discretion to hear and determine the case on the merits where
circumstances warrant. Three overriding principles are to be considered in this
second step of a mootness analysis: (1) the presence of an adversarial
relationship; (2) the need to promote judicial economy; and (3) the need for
the court to show a measure of awareness of its proper role as the adjudicative
branch of government (Borowski at para 40; see also Harvan v Canada
(Citizenship and Immigration), 2015 FC 1026 at para 7, 257 ACWS (3d) 923
and Khalifa v Canada (Citizenship and Immigration), 2016 FC 119 at para
18, 263 ACWS (3d) 30). The Court should consider the extent to which each of
these principles may be present in a case, and the application of one or two
may be overborne by the absence of the third and vice versa (see: Borowski
at para 42).
[23]
The Supreme Court in Borowski identified
several instances where the Court’s discretion may be exercised to allow it to
hear and decide a case which might otherwise be moot. For example, if: (1)
there is still the necessary adversarial relationship between the parties even
though the live issue or concrete dispute no longer exists; (2) the Court’s
decision will have practical effect on the rights of the parties (see Borowski
at para 35); (3) the case is one of recurring but brief duration, such that
important questions might otherwise evade judicial review (see Borowski
at para 36); or (4) where issues of public importance are at stake such that
resolution is in the public interest, though the mere presence of a matter of
national importance is insufficient (Borowski at paras 37 and 39).
[24]
In view of Borowski, and the new
regulatory framework enacted to govern the issuance of licences under the
reformed TLS, I find that this application for judicial review of PMV’s
decision to terminate the Applicant’s licence has been rendered moot. Furthermore,
nothing in the record or in the parties’ written and oral submissions compels
the Court to exercise its discretion to determine this application on its
merits and grant the declaratory relief requested by Kimberly. There is no
longer any live controversy or concrete dispute arising from the termination of
Kimberly’s licence, and no useful purpose would be served by reviewing the
merits of PMV’s termination decision or the manner in which such decision was
rendered. As noted by the Court in Ficek v Canada (Attorney General),
2013 FC 430, 228 ACWS (3d) 608 (at para 12): “the
doctrine of mootness may not be avoided merely by seeking declaratory relief
(see Rahman v Canada (Minister of Citizenship and
Immigration), 2002 FCT 137, 216 FTR 263).”
[25]
This is not an appropriate case for the Court to
exercise its discretion to determine the merits of this application for several
reasons. First, in view of the evidence on the record and that adduced at the
hearing of this matter, a decision by the Court on the merits of this
application, declaratory or otherwise, will not have any practical effect on
the rights of the parties because PMV is no longer responsible for or capable
of issuing licences under the TLS; that role now lies with the British Columbia
Container Trucking Commissioner. The transfer of that jurisdiction from PMV to
the Commissioner for the issuance of licences under the TLS is clearly within
the purview of the legislative branch. The Court should be mindful of its role
as the adjudicative branch of government and refrain from making any
pronouncements or determinations concerning how that jurisdiction may have been
exercised in the past which might impact upon some future exercise of such
jurisdiction.
[26]
Second, as to judicial economy, the Respondent
did not make a motion (as it could have done so) prior to the hearing of this
matter to have the application dismissed by reason of mootness. Nevertheless,
an application for judicial review can certainly be dismissed for mootness at
the time of the hearing without the necessity of a motion prior to the hearing
(see, e.g., Gladue v Duncan’s First Nation, 2015 FC 1194, 259 ACWS (3d)
5). To the extent that the Court should be mindful of utilizing scarce judicial
resources by hearing matters which are otherwise moot, those resources were,
for the most part, already expended upon the hearing of this matter.
[27]
Third, the issues raised by this application for
judicial review cannot be characterized as being of such a nature that they
raise important questions which might otherwise evade review by the Court.
[28]
Lastly, this application does not raise or
concern issues of such public importance that resolution of such issues would
be in the public interest. Although the Applicant’s allegations that PMV
misused its power and was biased in the decision-making process that resulted
in termination of its licence do attract some degree of public interest, given
PMV’s status as a public authority, these allegations are not supported by the
evidence before the Court such that it should exercise its discretion to
determine the merits of the application.
IV.
Conclusion
[29]
Accordingly, as stated above, the application
for judicial review of PMV’s decision to terminate the Applicant’s licence is
moot, and this is not an appropriate case for the Court to exercise its
discretion to determine or decide the merits or substantive issues concerning
such decision.
[30]
As to the issue of costs, the parties advised
the Court at the hearing of this matter that they had agreed upon an
appropriate all-inclusive amount and that costs should follow the cause unless
the application is determined on the basis of mootness, in which case the
Applicant says there should be no order as to costs while the Respondent says
there should be such an order. However, in my view of all the circumstances of
this case, no award of costs is warranted.
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