[1] Westshore Terminals Ltd. ("Westshore") operates a bulk coal loading facility at Roberts Bank, British Columbia, an area leased from the Vancouver Port Authority, ("the Port Authority"). Westshore looks for an unscheduled mid-term review of the rent paid under its lease for it believes the rate not only to be inconsistent with rates charged to other lessees in Vancouver Harbour but also to be above the rate charged to a competitor which also handles bulk coal. The present judicial review application hinges upon section 50(1) of the Canada Marine Act[1], providing that a Port Authority may not unjustly discriminate among users, or upon the common law as applied to rates set by a public utility in a monopoly situation.
[2] These reasons arise out of Westshore's motion under section 18(4) of the Federal Court Act, a provision which came into force 1 February 1992 and which, in appropriate circumstances, allows a judicial review application to be treated and proceeded with as an action.
[3] This is not a situation which embodies the clearest of circumstances for departure from a normal judicial review process, for while the viva voce evidence, which the parties could present were the matter to go to trial as an action, might be superior, the evidence which may be presented by affidavit, in a judicial review setting, would not be inadequate. The motion, despite excellent counsel work on behalf of Westshore, therefor fails. All of this requires further explanation. Rather than set out facts in addition to those touched on above, I will deal with some applicable law and, in my analysis, bring out relevant facts, keeping in mind that in many instances the facts are in dispute.
ANALYSIS
[4] The Port Authority is governed by the Canada Marine Act, supra, assented to 11 June 1998, being "an Act for making the system of Canadian ports competitive, efficient, and commercially oriented..."[2]. Pertinent to Westshore's case is section 50(1) of the Canada Marine Act:
A Port Authority shall not unjustly discriminate among users or classes of users of the Port, give an undue or unreasonable preference to any user or class of user or subject any user or class of user to an undue or unreasonable disadvantage.
Section 49(1) of the Act allows a port authority to fix fees in respect of various of uses and services. From the view point of Westshore the combined result of these two sections is that fees must be fair: fees, by definition include, "... harbour dues, berthage and wharfingers, as well as duties, tolls, rates and other charges; ....". In passing, I would also note that section 49(6) provides for a new fee structure within six months of the date on which the Act comes into force. Section 51(1) provides for notice when a new fee is set unless, by section 53, a Port Authority agrees, by contract, to keep such information confidential.
[5] As a starting point Westshore submits that section 50(1) of the Canada Marine Act, the statutory prohibition against discrimination, is a codification of the common law applicable to a public utility or other monopoly service provider, such as the Port Authority. Here counsel refers to Chastain v. British Columbia Hydro and Power Authority[3], a decision in which Mr. Justice McIntyre, of the B.C. Supreme Court, sets out at page 454 the following:
The obligation of a public utility or other body having a practical monopoly on the supply of a particular commodity or service of fundamental importanceto the public has long been clear. It is to supply its product to all who seek it for a reasonable price and without unreasonable discrimination between those who are similarly situated or who fall into one class of consumers. The great utility systems supplying power, telephone and transportation services now so familiar may be of relatively recent origin, but special obligations to supply service have been imposed from the very earliest days of the common law upon bodies in like cases, such as carriers, innkeepers, wharfingers and ferry operators. [Emphasis Added]
Mr. Justice McIntyre goes on to cite other authority including Chief Justice Strong, in Attorney General of Canada v. Toronto[4], to the effect that a public utility must charge rates which are uniform, fair and reasonable. Whether or not this public utility concept actually applies to a harbour authority is at this time beside the point: rather, the concept that a monopoly provider of goods or services must do so without discriminating between customers in certainly arguable. Alternately, if the harbour authority, when dealing with lease holders, must comply with the Canada Marine Act and be required to charge rents that are fair, reasonable and non-discriminatory, Westshore could be entitled to relief. All of this could well come down to a pure question of law. However, I stray from what Westshore must establish in order to convert the application to a proceeding with the format of an action.
[6] Section 18.4(1) of the Federal Court Act, which allows a judicial review proceeding to be heard as a trial in an action, is a relatively new provision, having been added to the Act in early 1992. The starting for a consideration of this section is Prince Edward Island Potato Board v. Canada[5], a 9 July 1992 decision of Mr. Justice Muldoon. There the Potato Board sought to convert the proceeding into an action by reason of the complexity of scientific considerations, which the Board believed would require expert explanation, with experts potentially in conflict. The Potato Board believed the Court would not be able to reach an informed conclusion unless the matter proceeded to a hearing as an action. Mr. Justice Muldoon felt that the then new section of the Act, providing that judicial review be dealt with as an application, ought to be given the chance to work as intended, allowing judicial review matters to be heard quickly and in a summary manner. He stated what has become the accepted test, that the procedure set out in the Federal Court Act for judicial review ought not to be "...departed from except in the clearest of circumstances":
Section 18.4 of the Federal Court Act makes it clear that, as a general Rule, an application for judicial review or a reference to the Trial Division shall be proceeded with as a motion. The section dictates that such matter be heard and determined "without delay and in a summary way". As an exception to the general Rule, provision is made in s. 18.4(2) for an application for judicial review to be proceeded with as an action. The new and preferred course of the procedure, however, is by way of motion and that course should not be departed from except in the clearest of circumstances. (page 152.)
This clearest of circumstances test was considered and approved by the Federal Court of Appeal in MacInnis v. Canada[6].
[7] In MacInnis, the Federal Court of Appeal not only adopted the approach taken by Mr. Justice Muldoon in the Potato Board case, but went on to reinforce that approach by pointing out that the intention of Parliament was that judicial review proceed quickly and only where the facts might not be satisfactory established or weighed through the use of affidavit evidence should section 18.4(2) come into play:
It is, in general, only where facts or whatever nature cannot be satisfactorily established or weighed through affidavit evidence than consideration should be given to use in section 18.4(2) of the Act. One should not lose sight of the clear intention of Parliament to have applications for judicial review determined whenever possible with as much speed and as little encumberances and delays of the kind associated with trial as are possible. The "clearest of circumstances" to use the words of Muldon J., where the section may be used, it where there is a need for viva voce evidence, either to assess demenure and credibility of witnesses or to allow the Court to have full grasp of the whole of the evidence whenever it feels the case cries out for the full panoply of a trial. (page 533).
The Court went on to cite various authorities and then set out what is now the established test. It is not whether evidence through a trial might be superior but whether the affidavit evidence heard on judicial review would be inadequate. (Page 534). The Court cautioned that one must "...remember the true nature of the questions to be answered by the court in judicial review proceedings and to consider the adequacy of affidavit evidence for answering those questions". (Page 533)
This general caution, to which I will refer later, is followed by some specific direction:
The complexity of the factual issues would be, taken by itself, an irrelevant consideration if the conflicting expert affidavit on which they are based are related to the issues before the Tribunal rather than the issues before the Court. In the same vein, speculation that hidden evidence will come to light is not a basis for ordering a trial... A judge might be justified in holding otherwise if there were good grounds for believing that such evidence could only come to light in a trial, but the key test is whether the judge can see that affidavit evidence will be inadequate, not that trial evidence might be superior (ibid pages 533-534) [Emphasis added].
A complex factual situation is not a factor in converting judicial review to an action, just as complex legal issues or the time to deal with them are not relevant considerations:
The complexity of legal issues is not, in itself, a relevant consideration. These issues would be complex whether they were argued in the course of an application of in the course of an action.
Time is also not in itself a relevant consideration for transforming an application into an action. The volume of the affidavit evidence to be filed, the time needed by counsel to submit their case are not related to the way the proceedings are held....
A party's subjective reason for desiring viva voce evidence would also be an irrelevant consideration. A party's desire to have his day in Court is not a good reason for allowing a trial. (ibid page 534)
[8] The Court of Appeal in MacInnes, considered and discarded various reasons which might be argued in support of a motion for conversion to an action, including arguments of a factual vacuum, of complex legal issues of time required by counsel to submit their cases, of volume of affidavit evidence and of a subjective desire for viva voce evidence. The Court of Appeal then referred to Vancouver Island Peace Society v. Canada[7], a decision of Mr. Justice Strayer, as he then was, and to a decision of Madame Justice Reed in Derrickson v. Canada[8] noting that "...it is important to remember the true nature of the question to be answered by the Court in judicial review proceedings and to consider the adequacy of affidavit evidence for answering those questions."(MacInnes at page 533).
[9] Vancouver Island Peace Society, suprais also particularly relevant in this instance for it touches upon the scope of the authority of a trial judge on judicial review. In Vancouver Island Peace Society, Mr. Justice Strayer noted that he had:
... concluded that both the applicants and the respondents have misconceived the nature of the role of the Court in dealing with the principle application. This matter was not adequately addressed before me, both sides seemingly assuming that it is the responsibility of the Court to sit on appeal from the factual determination of the "initiating department" or any other of the respondents in relation to the potential hazards involved in these visits of naval vessels and in relation to the existence of such public concern that a public review would be "desirable" (page 46).
In judicial review it is not the function of the Court to decide whether the decision itself is right or wrong, or to reach a new decision, but rather to determine whether the decision was made in accordance with the law and that:
In determining whether an official or agency has acted in accordance with the law in reaching the decision in question, the Court can consider whether the official or agency has correctly interpreted the law and whether the decision has been taken on the basis of facts and reasons relevant to the purpose for which the authority was given to make such a decision. But within that permissible range, the original decision maker has a right to make a decision which the Court cannot reverse even if it perchance does not agree with such decision.
...
Unless the Court is satisfied that the decision was on completely irrelevant factors it cannot quash such a decision. It is not for the Court to substitute its own assessment of the weight and nature of public concern and determine whether a public review is or is not "desirable". (ibid page 48)
While Vancouver Island Peace Society dealt with environmental concerns, the underlying principles are relevant generally. In exploring this idea, that a court may consider whether an official or agency has acted according to law or has interpreted the law correctly, Mr. Justice Strayer pointed out that the assessment of factual or expert views on potential environmental effects is irrelevant for the role of the Court is not to determine its own assessment of what is desirable, but to determine whether the decision was made by an individual or body acting in accordance with the law and that "within this restrictive role of the Court, there is no place for the presentation of factual or expert opinion on the nature or degree of potential environmental effect as such." (Page 49).
[10] Mr. Justice Strayer, cautioned against the allowing the Court to become an arbiter of conflicting scientific predictions. By analogy it is not the role of the Court, in this present matter, to analyse accounting information, statistics, practice and what might be best in the public interest and then set a rate of rent, as requested by Westshore in setting out the relief it seeks. He summed up his conclusions at page 51:
For these reasons I am unsympathetic to the arguments of the respondents that there are difficult technical factual determination to be made which will require pleadings and a trial and the cross-examination viva voce of experts and others. It is not the role of the Court in these proceedings to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of a legislative upper chamber to weigh expressions of public concern and determine which one should be respected. Whether society would be well served by the Court performing either of these roles, which I gravely doubt, they are not roles, conferred upon it in the exercise of judicial review under section 18 of the Federal Court Act...
Mr. Justice Strayer concluded that he would not direct the matter to be tried by way of an action, believing that "many of the concerns of the respondents can be met if the parties of focus on the real issues." (loc cit)
[11] In considering whether the present judicial review application ought to be converted into an action, I have kept in mind Mr. Justice McKeown's view, in Delzotto v. Canada[9], that consideration should be given to avoiding unnecessary costs and delays, the necessity for assessing demeanor and credibility of witnesses and the need for the Court to fully grasp all of the evidence (page 157). Of course, this list is not exhaustive, for as the Court of Appeal pointed out in Drapeau v. Canada[10], section 18.4(2) does not place limits on considerations to be taken into account in deciding whether a judicial review application ought to be converted into an action. In taking all of this into account, I must determine whether Westshore v. Vancouver Port Authority is a special circumstance in which the present application should be turned into an action because evidence at trial by way of affidavit would be inadequate.
[12] To begin, there is a question of the true nature of the question or questions to be answered. Counsel for the Port Authority submits that the real issue is whether the Canada Marine Act, or the common law, require that rent, as with various other fees, including those for harbour dues, berthage, duties, tolls and rates, be determined without discriminating among users or classes of users and without giving undue or unreasonable preference to any users of the port so as to produce an undue or unreasonable disadvantage. In effect, the issue is the applicability of either the common law as applied to monopolies, or section 50(1) of the Canada Marine Act, to the rent charged Westshore under its lease of the land on which its facilities are situated. This is a straight forward legal question, to which the Port Authority has filed several affidavits including one to which there is appended a resolution of the Board of Directors of the Port Authority to the effect that the Port Authority considers that section 50 of the Canada Marine Act does not apply so far as rents of leased land are concerned. Counsel for the Port Authority also advises that the Port Authority does not believe that the common law governing monopoly public utilities is applicable to the setting of rents. In fact, the Port Authority says it has never considered whether the rent charged Westshore is fair and reasonable as required by section 50 of the Act or by the common law in certain circumstances. This leads to the narrow question of whether the Canada Marine Act or the common law apply so as to prevent discrimination among users of leased land. If either do apply, the Port Authority must then consider not only the rent of Westshore, but also the rent of all other tenants of leased land in Vancouver harbour, for the Port Authority has just not considered rents from this aspect.
[13] Counsel for Westshore takes a broader approach, contending it is not the narrow legal question of the applicability of the common law or the Canada Marine Act that the Court must decide, but rather a complex factual matrix which must be sorted out, leading to a decision that not only is the rent unfair and unjustly discriminatory, putting Westshore at an undue or unreasonable disadvantage, but also that it is a situation which must be rectified, either by a mandatory order that the Port Authority adjust the lease rate, or by a Court order in fact setting the rent at $2.48 million dollars per year or at some rate, giving a reasonable return on the Port Authority's capital: all of this is included in the relief sought by Westshore in its Notice of Application, relief which Westshore's counsel submits is within the jurisdiction of the Federal Court sitting in judicial review.
[14] Counsel for Westshore submits that the scope of remedies available in Federal Court may vary depending upon whether the Board or Tribunal being judicially reviewed is a regulator, determining issues between two parties, or is regulated by statute thus enabling it to determine the position of one party. In the latter instance the submission is that the available Federal Court remedies are broader and more extensive, going as far as the relief sought by Westshore, which includes the actual setting of the rent. Counsel did not bring case authority for the proposition, but maintained it was so in the B.C. Supreme Court. Where this line of reasoning goes wrong, in the Federal Court, is that the Federal Court is a statutory Court with remedies on judicial review being limited by the Federal Court Act and specifically by section 18.1 of the Act.. The Federal Court's job on judicial review is to sit in review and thereby determine whether or not a Board or Tribunal acted properly: it is not the duty of this Court to sit on appeal and to grant its own relief directly to a party.
[15] As an indication of the breadth of the issue counsel for Westshore refers to the Port Authorities many affidavits. Counsel for the Port Authority, being mindful that all of its affidavit material should be filed together and cognizant of the problem the Port Authority might have if its narrow interpretation of the judicial review issue is wrong, has in fact filed nine affidavits. In the view of counsel for the Port Authority much of the affidavit material is irrelevant in that it applies only if one rejects the narrow legal question as being the issue and accepts the broad view that there is a complex factual matrix which must be decided by the Court, leading to a decision of an unjust rent or even to the setting of a rent by the Court.
[16] I do not have to determine which approach is correct, however, I would note that the true nature of the questions to be answered by the Court may well be whether the Port Authority was correct in deciding that it had the discretion to fix rents and that neither the common law as to utility monopolies nor section 50 of the Canada Marine Act applied. Here I would note that it is not necessary that the Court agree with the decision, but to determine that the correctly law is applied. I would also add my view that it is not for the Court to set a rental rate: that, if need be, can be accomplished by referring the matter back to the Port Authority with either appropriate suggestions or directions. If the issue before the Court is the narrow legal issue of the law or legislation applicable to the Port Authority, in setting rent, there is no arguable reason to convert this proceeding to an action. However, for the sake of argument and in deciding this motion, I have assumed, if the questions before the Court be not the narrow legal one, that some of the complex matrix of facts set out in the affidavit material might be relevant and lead to more specific declaratory or mandatory relief.
[17] If there is a broad factual question before the Court, certain additional portions of the substantial affidavit of material might be relevant. Yet further material could conceivably be added to the record. However, I do not see that the material is such, even allowing for the possibility that the broader factual question of proper rent is to be determined, that the Court might need viva voce evidence to determine that the rent is improper. Here I would refer to the view of the Court of Appeal in MacInnes (supra), that complexity of issues, volume of affidavit material and the desire for viva voce evidence to explain matters to the Court are not in themselves relevant factors. Rather it is whether the factual basis for deciding the issues, whatever be the question, might be properly generated by affidavit evidence. Certainly, if one accepts the question as a broad factual one, the issues and facts are complex. However, I do not see that the absence of pleadings means that the Court must speculate on the issues. Moreover, if as Westshore contends, the evidence of the Port Authority, as set out in the affidavits, consists of undefined understanding and market intelligence, that is the problem of the Port Authority, for a judge will certainly take into account cross-examination and give appropriate weight to such evidence. In considering the application for judicial review and the affidavit material before me, I am not persuaded that a summary determination by way of affidavit evidence and utilizing the judicial review would handicap the Court and prevent it from dealing adequately with the issues. Even allowing that a Court might be convinced to consider a broader question, I do not see the issues as so complex as to require the full panoply of trial, including production of documents, examination for discovery and viva voce evidence complete with cross-examination.
[18] The Port Authority makes submissions as to circumstances surrounding the negotiation of Westshore's lease, the profitability of Westshore, and comparative studies, both local and off-shore. Westshore considers rental policies. Among the other factors are the views of experts and the income needed to make the Port Authority into a self supporting entity. Even if these issues become relevant in this proceeding, I do not see that they cannot be presented by affidavit so as to be within the understanding of the judge hearing the matter.
[19] In reply, counsel for Westshore made a number of points, some of which were to repeat initial arguments or which ought to have been made in the initial argument. I will, however, touch upon an estoppel argument.
[20] Initially the Port Authority thought that a trial might be required. Westshore took a contrary position. The Port Authority then filed very substantial affidavit material. Yet I do not see this as being unfair or as leading to an estoppel of some description. Rather I accept the Port Authority's position that most of the affidavit evidence filed by the Port Authority, going beyond that required to set out its case on the narrow legal issue, merely provides evidence relevant to positions taken by the parties before the Canadian Transport Authority during the hearing of May 2000. And here I would also refer to the reasons for filing all of the extra and possibly irrelevant material, assuming the question before the Court is merely the narrow legal issue of the applicability of the law and legislation: the filing of all material was ordered by prothonotary Lafrenière and, as explained in the 11 December, 2000 letter from counsel for the Port Authority to the Court, copy to counsel for Westshore, all the extra and seemingly extraneous affidavit material filed by the Port Authority might be relevant only if the Court should deal with the question of the actual amount of the rent.
[21] I do not see this mass of affidavit material, or the various positions taken by counsel at different times, to constitute any form of surprise or estoppel. Rather, it would seem that the Port Authority has laid out its whole case for the benefit of Westshore. If Westshore believes there are now new broad disputed factual issues, it may always seek leave to file additional affidavits.
CONCLUSION
[22] In arguing this motion counsel for each side were thorough. They presented argument well. However, taking all of the circumstances into consideration, including submissions of a factual nature, much interesting argument, and the case law, particularly that establishing that the judicial review process ought not to be departed from except in the clearest of circumstances, I am not convinced that evidence presented by affidavit, in a judicial review setting, would be inadequate. The motion is therefore denied.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-68-00
STYLE OF CAUSE:WESTSHORE TERMINALS LTD.
v.
VANCOUVER PORT AUTHORITY
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 20, 2001
REASONS FOR ORDER OF HARGRAVE, P.
DATED: March 7, 2001
APPEARANCES:
Mr. William Kaplan
Mr. Scott Turner FOR APPLICANT
Mr. Barry Kirkham FOR RESPONDENT
Mr. Harley Harris
SOLICITORS OF RECORD:
Blake Cassels & Graydon
Vancouver, BC FOR APPLICANT
Owen Bird
Vancouver, BC FOR RESPONDENT
[2] Canada Marine Act, R.C.S. 1998 c. 10
[3] (1973), 32 D.L.R. (3d) 443
[4] (1894), 23 S.C.R. 514 at 520
[6] (1994), 113 D.L.R. (4th ) 529
[8] (1993), 63 F.T.R. 292
[9] (1996), 103 F.T.R. 150
[10] (1995), 179 N.R. 398 at 399
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