Halterm Ltd. v. Halifax Port Authority, docket T-2131-99

Date: 20000616

Docket: T-2131-99

Ottawa, Ontario, this 16th day of June, 2000

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE

BETWEEN:

HALTERM LIMITED

Applicant

- and -

HALIFAX PORT AUTHORITY

Respondent

REASONS FOR ORDER AND ORDER

O"KEEFE J.

[1]      This is a motion by the Halifax Port Authority ("Port Authority") for an Order dismissing Halterm Limited"s ("applicant" or "Halterm") application for judicial review filed on December 7, 1999. The grounds for the motion to dismiss are "that the Federal Court does not have jurisdiction to hear the application for judicial review because:

1.      The Halifax Port Authority is not a "federal board, commission or other tribunal" within the meaning of sections 2 and 18.1 of the Federal Court Act .

2.      The letter from the Halifax Port Authority dated November 9, 1999 is not a "decision" within the meaning of subsection 18.1 of the Federal Court Act .

3.      In the alternative, the applicant"s application for judicial review is out of time."

[2]      Also, Halterm has brought a motion seeking leave to amend its Originating Notice

of Motion.

[3]      The Halifax Port Corporation was governed by the Canada Ports Corporation

Act. The Port Authority was created pursuant to the Canada Marine Act, S.C. 1998, c.10. The sections of the Canada Marine Act (the "Act") continuing the Port Authority as successor to the Halifax Port Corporation were proclaimed into force on March 1, 1999.

[4]      Halterm is a body corporate formed by the amalgamation of Halterm Acquisition

Corp. and Halterm Holdings Inc. under the laws of Canada on May 14, 1997 and is successor in title to all of the assets, operations and business of Halterm Limited, a body corporate incorporated under the laws of Nova Scotia on April 14, 1969.

[5]      Halterm is a terminal operator at the Port of Halifax and provides stevedoring

services to the container ships which use the terminal. Halterm supplies the equipment used to load the containers to and from the storage areas of the terminal and to load the containers on and off the rail and transport facilities.

[6]      Halterm"s sole business is that of a container port terminal operator at the

locations under lease in the Port of Halifax. Halterm has no alternative location from which it can conduct its business and is dependant on the port leases for the continuation of its operations. Halterm competes for business with other operators at the Port of Halifax.

[7]      The Port Authority and Halterm entered into four leases involving lands and

buildings. The termination date of the leases is December 18, 2000.

[8]      Clause 12 of each of these four leases states that the lease "shall absolutely cease

and determine without re-entry or any other act or suit of legal proceedings to be brought or taken . . . "

[9]      On January 28, 1997, Halterm requested that it be given an option to renew its

existing principle lease.

[10]      By letter dated March 12, 1997, the Halifax Port Corporation agreed to provide

Halterm with an option to renew its lease on the following terms:

I am pleased to inform you that the Board of Directors has agreed to provide Halterm Limited with an option to renew its lease with the Halifax Port Corporation for an additional 10 years subject to satisfactory renegotiation of the lease.

Since your present lease expires on December 18, 2000, an option would extend the term to December 18, 2010.

[11]      After August, 1999, the parties attempted to renegotiate a new lease, but with no

success.

[12]      On October 6, 1999, the Port Authority notified Halterm that any

renegotiation of the leases had to be concluded by November 17, 1999 so that the applicant could consider other options such as the issuance of a request for proposals, if negotiations with Halterm proved to be unsuccessful.

[13]      According to Halterm, in a letter dated November 9, 1999, the Port Authority

reduced the proposed land rental increase from 900% to 700%.

[14]      On December 7, 1999, Halterm filed an application for judicial review which the

Port Authority now is trying to strike by way of this preliminary motion.

[15]      Prior to dealing with the issues raised by this application, I will deal with the

motion by Halterm to amend its application for judicial review to add the relief requested in paragraphs 6, 7, 8 and 9 of the amended Notice of Motion. The application was not strenuously opposed by the Port Authority. The relief requested to be added is:

6.      A declaration that the HPA has failed to meet its statutory and common law obligations in attempting to obtain lease payments in respect of the lease renewal which are unjust, unreasonable and constitute unjust discrimination under the Canada Marine Act;

7.      An order of mandamus requiring the HPA to set lease rates in respect of the lease renewal which are just, reasonable and not unjustly discriminatory and are otherwise in accordance with the Canada Marine Act and with its obligations to the Applicant;

8.      An order of mandamus requiring the HPA to act in good faith and in accordance with its duties and obligations in concluding a lease renewal with the Applicant;

9.      A permanent injunction restraining and prohibiting the HPA from accepting any bids or offers or from concluding a lease, licence or other agreement in respect of the premises currently under lease which does or may adversely affect the Applicant;

[16]      Rule 75(1) of the Federal Court Rules, 1998 states:

Amendments with leave 75. (1) Subject to subsection (2) and rule 76, the Court may, on motion, at any time, allow a party to amend a document, on such terms as will protect the rights of all parties.

Modifications avec autorisation 75. (1) Sous réserve du paragraphe (2) et de la règle 76, la Cour peut à tout moment, sur requête, autoriser une partie à modifier un document, aux conditions qui permettent de protéger les droits de toutes les parties.

[17]      I have considered the representations of Halterm and I would accordingly grant

the amendment requested by Halterm, subject to the right of the Port Authority to make representations with respect to these new grounds including any representations relating to a motion to strike.

Issues

[18]      This motion raises three issues:

1.      Is the Port Authority a "federal board, commission or tribunal" within the meaning of sections 2 and 18.1 of the Federal Court Act ?

2.      Is the letter from the Port Authority dated November 9, 1999 a "decision" within the meaning of subsection 18.1 of the Federal Court Act ?

3.      In the alternative, is the applicant"s application for judicial review out of time?

Law

[19]      Subsection 2(1) of the Federal Court Act, R.S.C. 1985, c. F-7 states:

"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;

"office fédéral" Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi constitutionnelle de 1867.

[20]      The Canada Marine Act, S.C. 1998, c. 10, reads, in part, as follows:

44. (1) For the purposes of the Federal Real Property Act, the Minister has the administration of the federal real property of a port in respect of which letters patent have been issued to the port authority, other than federal real property the administration of which is under any other member of the Queen's Privy Council for Canada. (2) The Minister may, in the letters patent, give to a port authority the management of any federal real property that is administered by (a) the Minister under subsection (1); or (b) any other member of the Queen's Privy Council for Canada, if the Minister has the consent of that other member. (3) Where the Minister gives the management of federal real property to a port authority, the Federal Real Property Act, other than sections 12 to 14 and paragraphs 16(1)(a), (g) and (i) and (2)(g), does not apply to that property. (4) The Surplus Crown Assets Act does not apply to a port authority. (5) Where a port authority is of the opinion that certain real property is no longer required for port purposes, it shall so inform the Minister. (6) A port authority may manage, occupy or hold only the real property set out in its letters patent. 45. (1) Where the Minister has given the management of federal real property to a port authority, the port authority (a) need not pay compensation for the use of that property;

(b) may retain and use the revenue received in respect of that property for the purpose of operating the port; (c) shall undertake and defend any legal proceedings with respect to that property; and (d) shall discharge all obligations and liabilities with respect to that property. . . . (3) A port authority may, for the purpose of operating the port, lease or license any federal real property that it manages, subject to the limits in the port authority's letters patent on its authority to contract as agent for Her Majesty in right of Canada. The term of the lease or licence may not be more than the maximum term that the letters patent set out for such a lease or licence. (3.1) The port authority may exercise the powers under subsection (3) to the same extent as Her Majesty could exercise those powers and may, instead of Her Majesty, execute and deliver the documents required for that purpose. (4) A lease or licence of federal real property may be effected by any instrument by which real property may be leased or a licence may be granted by a private person in respect of real property under the laws in force in the province in which the property is situated. 46. (1) Subject to subsection 45(3), a port authority may not dispose of any federal real property that it manages but it may (a) without the issuance of supplementary letters patent, grant road allowances or easements, rights of way or licences for utilities, services or access; and (b) to the extent authorized in the letters patent, (i) exchange federal real property for other real property of comparable market value subject to the issuance of supplementary letters patent that describe the other real property as federal real property, and (ii) dispose of fixtures on federal real property. (1.1) The port authority may exercise the powers under paragraph (1)(a) or (b) to the same extent as Her Majesty could exercise those powers and may, instead of Her Majesty, execute and deliver the documents required for that purpose.

44. (1) Pour l'application de la Loi sur les immeubles fédéraux, le ministre a la gestion des immeubles fédéraux qui se trouvent dans le port qu'une administration portuaire exploite en vertu de ses lettres patentes, à l'exception de ceux dont la gestion est confiée à un autre membre du Conseil privé de la Reine pour le Canada. (2) Le ministre peut, par lettres patentes, confier à l'administration portuaire la gestion d'un immeuble fédéral soit qui est géré par lui au titre du paragraphe (1), soit qui est géré par un membre du Conseil privé de la Reine pour le Canada, s'il a le consentement de ce membre. (3) Lorsque le ministre confie la gestion d'un immeuble fédéral à une administration portuaire, la Loi sur les immeubles fédéraux, à l'exception des articles 12 à 14 et des alinéas 16(1)a), g) et i) et (2)g), ne s'applique plus à cet immeuble. (4) La Loi sur les biens de surplus de la Couronne ne s'applique pas à l'administration portuaire. (5) L'administration portuaire informe le ministre dans le cas où elle est d'avis que certains immeubles ne sont plus nécessaires à l'exploitation du port. (6) Une administration portuaire ne peut gérer, occuper et détenir que les immeubles qui sont mentionnés dans ses lettres patentes. 45. (1) Lorsque le ministre a confié la gestion d'immeubles fédéraux à l'administration portuaire, celle-ci_: a) n'est pas tenue de payer pour leur utilisation;

b) peut conserver et utiliser les recettes qu'ils génèrent pour l'exploitation du port; c) est tenue d'intenter les actions en justice qui s'y rapportent et de répondre à celles qui sont intentées contre elle; d) est tenue d'exécuter toutes les obligations qui s'y rattachent. . . . (3) Une administration portuaire peut, pour l'exploitation du port, louer les immeubles fédéraux qu'elle gère ou octroyer des permis à leur égard, sous réserve des limites, précisées dans les lettres patentes, quant à son pouvoir de contracter à titre de mandataire de Sa Majesté du chef du Canada et à la durée maximale de ces baux et permis. (3.1) L'administration portuaire exerce les pouvoirs visés au paragraphe (3) au même titre que Sa Majesté et, à cette fin, peut établir et délivrer, au lieu de Sa Majesté, les documents requis. (4) L'octroi d'un permis ou la location d'un immeuble fédéral peuvent s'effectuer par un acte qui, en vertu des lois de la province de situation de l'immeuble, peut servir à en opérer l'octroi ou la location entre sujets de droit privé. 46. (1) Sous réserve du paragraphe 45(3), une administration portuaire ne peut aliéner les immeubles fédéraux dont la gestion lui est confiée; elle peut toutefois_: a) sans que des lettres patentes supplémentaires ne soient délivrées, consentir à leur égard des emprises routières ou des servitudes ou permis pour des droits de passage ou d'accès ou des services publics; b) dans la mesure où ses lettres patentes l'y autorisent_: (i) les échanger contre des immeubles de valeur marchande comparable à la condition que des lettres patentes supplémentaires soient délivrées et que celles-ci fassent mention que ces derniers deviennent des immeubles fédéraux, (ii) aliéner les accessoires fixés à demeure sur ces immeubles. (1.1) L'administration portuaire exerce les pouvoirs visés aux alinéas (1)a) et b) au même titre que Sa Majesté et, à cette fin, peut établir et délivrer, au lieu de Sa Majesté, les documents requis.

Analysis and Decision

Issue 1

[21]      Is the Port Authority a "federal board, commission or other tribunal" within the meaning of sections 2 and 18.1 of the Federal Court Act?

     The Port Authority has argued that it is not a "federal board, commission or other tribunal" within the meaning of the Federal Court Act , therefore, this Court has no jurisdiction to hear this application for judicial review and consequently, the application should be struck by way of this preliminary motion. In David Bull Laboratories (Can.) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.), a case dealing with an application to strike an originating notice of motion for prohibition, the Court of Appeal stated at page 600:

For these reasons we are satisfied that the Trial Judge properly declined to make an order striking out, under Rule 419 or by means of the "gap" rule, as if this were an action. This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.

[22]      In Garcia v. Canada (Attorney General) (1997) 129 F.T.R. 174 (F.C.T.D.)

Teitelbaum J. stated at page 178:

[14]      It thus becomes clearly apparent that a motion to strike should not be made to strike an Originating Notice of Motion unless the court, because of its inherent jurisdiction or "through rule 5 by analogy to other rules, [dismisses] in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success".

[15]      I am satisfied that an application to strike for want of jurisdiction is such an application, that is, that it is an application, that when decided would be one that should decide the entire issue in a summary manner.

[23]      It would appear from the jurisprudence of this Court that should the Port

Authority not be a "federal board, commission or other tribunal", then this Court would not have any jurisdiction to deal with the application for judicial review.

[24]      The question now becomes whether or not the Port Authority is a "federal

board, commission or other tribunal" in the circumstances of this case, that is, where it is negotiating a lease with Halterm for federal lands.

[25]      The Port Authority argued before me that it was not a "federal, board,

commission or other tribunal" as it was merely carrying on the activities of a corporation when it was negotiating a lease of the federal lands to Halterm. It referred me to this Court"s decisions in Cairns v. Farm Credit Corp. [1992] 2 F.C. 115 (F.C.T.D.) and Thomas W. Wilcox v. Canadian Broadcasting Corporation [1980] 1 F.C. 326 (F.C.T.D.). These cases stand for the proposition that when a corporation created by federal statute is carrying out its private powers which are incidents of its legal personality or its authorized business, it is not a "federal board, commission or other tribunal". In Wilcox, supra , the activity was the transferability of pension service of an employee and in Cairns, supra, the activity was decisions concerning the most commercially sound compromise to be reached with a defaulting borrower.

[26]      In the present case, the Port Authority is attempting to negotiate a lease with

Halterm for federal real property. Traditionally, a corporation does not, as an incident of its usual activity, have authority to lease federal real property. In fact, without specific authority, this cannot be done. It is by virtue of the combined authority granted by paragraph 8(2)(d), subparagraph 44(2)(a)(3) and subsection 45(3) of the Act and the letters patent of the Port Authority, that the Port Authority has the right to lease federal real property. I might note that I refer to the letters patent because the letters patent sets out the federal real property to be managed by the Port Authority.

[27]      It must be asked whether the lease of the federal real property by the Port

Authority is the "exercise of a jurisdiction or powers conferred by or under an Act of Parliament" so as to make the Port Authority a "federal board, commission or other tribunal" and thus, subject to judicial review by the Federal Court.

[28]      The Federal Court of Appeal in Gestion Complexe Cousineau (1989) Inc. v.

Canada (Minister of Public Works and Government Services) [1995] 2 F.C. 684 (F.C.A.) discussed the meaning of the words, "powers conferred by or under an Act of Parliament". That case dealt with the application for judicial review of the decision of the Minister to award a contract to a bidder other than the applicant. The tender process was in issue. The Minister argued that the Court lacked jurisdiction to hear the application because the tender call involved the Minister"s exercise of his inherent power to enter into contracts, not a "power conferred by or under an Act of Parliament". The Court of Appeal disagreed with the Minister and stated at pages 700-701:

The phrase "powers conferred by or under an Act of Parliament" found in the definition of a "federal board, commission or other tribunal" is particularly broad and is not subject to the limitation suggested by the Minister. In the case at bar I do not have to consider whether the Minister is a servant of Her Majesty or whether the act done by him is binding on Her Majesty. I also do not have to examine whether the Minister is part of the federal government in the ordinary sense of that phrase or whether the act done falls within the jurisdiction of the Parliament of Canada as opposed to the provincial legislatures. These points are not in dispute. Further, I do not need to engage in a constitutional analysis of the concept of "the Crown"s inherent administrative power", since the Minister"s power to enter into the acquisition of real property by lease may no longer be described as an inherent power once the Governor in Council, with the authority of legislation, has seen fit to codify it in language containing no ambiguity: "a Minister may enter into an acquisition". It may well be, as the respondents argued, that this conferring of power by the combined effect of a statute and regulation was not necessary, but strictly speaking I am only required to consider whether there is a "[power] conferred by or under an Act of Parliament" within the meaning of the definition of "federal board, commission or other tribunal", and I can only conclude there is.

It should be borne in mind that what is at issue here is determining whether a litigant has access to this Court"s power of review in connection with a legislative provision"paragraph 18(1)(a) of the Federal Court Act"by which Parliament sought to make the federal government subject to the Court"s superintending and reforming power. As I see it, there is no reason to try and distort the usual meaning of the words or strive to divest them of all practical meaning by resort to fine distinctions suited to constitutional analysis, which would have a sterilizing effect contrary to the intent of Parliament.

    

and at page 705:

In recent years Parliament has made a considerable effort to adapt the jurisdiction of this Court to present-day conditions and to eliminate jurisdictional problems which had significantly tarnished the Court"s image. As between an interpretation tending to make judicial review more readily available and providing a firm and uniform basis for the Court"s jurisdiction and an interpretation which limits access to judicial review, carves up the Court"s jurisdiction by uncertain and unworkable criteria and inevitably would lead to an avalanche of preliminary litigation, the choice is clear. I cannot assume that Parliament intended to make life difficult for litigants.

I thus come to the conclusion that it would be contrary to the letter and the spirit of paragraph 18(1)(a) to say that a minister expressly empowered by a regulation made pursuant to paragraph 16(2)(b) of the Federal Real Property Act to lease real property is not exercising a power "conferred by or under an Act of Parliament" when he issues a call for tenders prior to the conclusion of a lease.

[29]      In the present case, when the Port Authority is leasing or negotiating to lease

federal real property to Halterm, it is exercising powers given to it pursuant to the Canada Marine Act. It is not exercising the private powers of a corporation as that wording is used in Cairns, supra. It is exercising the powers specifically given to it in the Canada Marine Act and thus, it is a "federal board, commission or other tribunal" within the Federal Court Act when negotiating leases. As a result, this Court has jurisdiction to hear Halterm"s judicial review application. This ground of the motion is therefore dismissed.

Issue 2

[30]      The letter from the Port Authority dated November 9, 1999 is not a "decision" within the meaning of subsection 18.1 of the Federal Court Act.

     I have reviewed the letter from the Port Authority to Halterm Limited dated November 9, 1999 and I am of the opinion that this letter is not a decision within the meaning of subsection 18.1 of the Federal Court Act. From the contents of the letter, it is obvious that no final conclusion has been reached as the parties are still making proposals. The letter is not a "decision", let alone a "final decision" as contemplated by the law. Hence, there is not a decision for which any of the relief available under subsection 18.1 of the Act may be given.

[31]      However, in light of the decision in Krause et al v. Canada (1999) 236 N.R. 317

(F.C.A.), this only ends the application as far as a review of a particular decision or order is involved. Judicial review of a course of conduct under the basis that it is a "matter" as that word is used in subsection 18.1 of the Act may still be a basis for relief.

[32]      The only relief requested in the December 7, 1999 application for judicial review

that is based on a "decision" is the relief requested in paragraphs 1 and 2, as follows:

A declaration that the decision is invalid and unlawful.

An order quashing or setting aside the decision and referring the matter back to Halifax Port Authority to be dealt with in accordance with such directions as this Court deems appropriate.

[33]      Since I have ruled that the November 9, 1999 letter is not a decision, I would

strike the relief requested in paragraphs 1 and 2 of the December 7, 1999 application for judicial review. My basis for doing this is the relief requested in paragraphs 1 and 2 are "bereft of any possibility of success" (see David Bull Laboratories (Can.) Inc. v. Pharmacia Inc., supra).

Issue 3

[34]      Is the applicant"s application for judicial review out of time?

     The submission of the Port Authority is that in the alternative, the application is out of time because it was not made within 30 days of the decision. It maintains that the November 9, 1999 letter was essentially the same as a letter dated August 25, 1999, therefore, the application should have been made within 30 days of August 25, 1999, and it was not made until December 7, 1999. I cannot agree with this position as I believe that the November 9, 1999 letter, were it a decision, which I have ruled it is not, is not the same as the August 25, 1999 letter. The letter of November 9, 1999 is a different letter and stands on its own. Therefore, the application for judicial review was not filed out of time.

[35]      The parties may, if necessary, speak to costs.

ORDER

[36]      IT IS ORDERED that the Port Authority is a "federal board,

commission or other tribunal" within the meaning of section 2 of the Federal Court Act and that the Federal Court Trial Division has authority to hear the application.

[37]      IT IS FURTHER ORDERED that the letter of November 9, 1999 is not a

decision and therefore paragraphs 1 and 2 of the relief requested in the application for judicial review dated December 7, 1999 be struck.

[38]      IT IS FURTHER ORDERED that the application for judicial review was not

filed out of time.

[39]      IT IS FURTHER ORDERED that the motion to amend the application for

judicial review is granted, subject to the conditions in the decision.

[40]      IT IS FURTHER ORDERED that the parties may, if necessary, speak to costs.

     "John A. O"Keefe"

     J.F.C.C.

Ottawa, Ontario

June 16, 2000