Westshore Terminals Ltd. v. Vancouver Port Authority, 2002 FCT 195

Date: 20020222

Docket: T-68-00

Neutral citation: 2002 FCT 195

BETWEEN:

                                                         WESTSHORE TERMINALS LTD.

                                                                                                                                                    Applicant

                                                                            - and -

                                                    VANCOUVER PORT AUTHORITY

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

NADON J.

[1]                 On January 18, 2000, the applicant, Westshore Terminals Ltd. (the "applicant"), commenced judicial review proceedings in respect of the Vancouver Port Authority's (the "respondent") refusal to, in effect, reduce the applicant's lease payments under a Lease Agreement entered into on March 1, 1982 (the "Lease Agreement"), on the grounds that the lease payments are unfair, unreasonable and discriminatory, pursuant to subsections 49(3) and 50(1) of the Canada Marine Act, S.C. 1998, ch. 10 (the "Act").

[2]                 In its Notice of Application, the applicant seeks, inter alia, the following remedies:

(a)        a declaration that the VPA [Vancouver Port Authority] has failed to meet its statutory obligation to fix new fees under the lease that are fair and reasonable;

(b)        a declaration that the VPA has unjustly discriminated between the applicant and others, who are users, or part of a class of users, of the Port of Vancouver, in violation of subsection 50(1) of the Act and in violation of its common law duties and obligations;

(c)        a declaration that the VPA has given an undue or unreasonable preference to other users or classes of users of the Port of Vancouver over the applicant, in violation of subsection 50(1) of the Act and in violation of its common law duties and obligations;

(d)        a declaration that the VPA has subjected the applicant to an undue or unreasonable disadvantage in relation to other users or classes of users of the Port of Vancouver, in violation of its statutory and common law duties and obligations; and

(e)        a writ of mandamus requiring the VPA to adjust the lease rates to levels that are fair and reasonable and that do not unjustly discriminate against the applicant.

[3]                 By Notice of Motion dated February 16, 2000, the respondent sought an Order striking out the applicant's judicial review application on the grounds, inter alia, that the rates payable by the applicant under the Lease Agreement of March 1, 1982, were not "fees" within the meaning of the Act and, as a result, were not subject to subsections 49(3) and 50(1) of the Act, which prescribe that the "fees" fixed by a port authority must be fair and reasonable, and that the port authority should not discriminate among users or classes of users of the port. The respondent's motion was argued before Prothonotary Hargrave on March 1 and August 9, 2000. On October 13, 2000, the learned prothonotary dismissed the motion and stated at paragraph 7 of his Order by Way of Endorsement:

[7]           I have also considered whether the matter ought to be struck out on the argument that rent payments under the lease are not fees within the Canada Marine Act and thus not reviewable. Issues as to the proper interpretation of legislation and serious issues of law ought not to be determined on a summary motion to strike out a pleading and here I would refer to Dumont v. Canada [1990 1 S.C.R. 279 and to Vulcan Equipment Co. v. Coats Co. (19820, 63 C.P.R. (2d) 201, adding the caveat, made in Vulcan, that there may be instances in which an argument is so futile that striking out is warranted, however that is not the situation in the present instance.

[4]                 On June 1, 2001, the applicant sought leave to file a motion under Rule 107(1)^[1] of the Federal Court Rules, 1998. Specifically, the applicant sought leave of this Court so as to obtain answers to a number of questions, prior to the hearing on the merits of its judicial review application. On June 13, 2001, Prothonotary Hargrave gave leave to the applicant and ordered that the following questions be determined:

(i)            Are the "Lease Rates" (as defined in the Notice of Application) "fees" within the meaning of the Canadian Marine Act, S.C. 1998 c. 10 (the "Act")?

(ii)           Does s. 49 of the Act have any application to the Lease Rates?

(iii)          Does s. 50 of the Act have any application to the Lease Rates?

(iv)          If the Vancouver Port Authority ("VPA") is found to have a practical monopoly over the supply or provision of access to the Port of Vancouver, does the common law governing "practical monopolies" impose any duties upon the VPA in respect of the Lease Rates?

(v)           Does this Court have any jurisdiction to grant Westshore any of the relief requested in the prayer for relief following paragraph 57 of the Notice of Application?

[5]                 The facts relevant to the determination of the issues can be summarized as follows. In March 1982, the applicant and the National Harbours Board (the "NHB"), the legal predecessor in interest to the respondent, entered into an agreement whereby the applicant leased two shipping berths, located on land (and related foreshore and waterlot) at Roberts Bank.

[6]                 Roberts Bank is a man-made island in Delta, British Columbia. It is Crown land that forms part of the Port of Vancouver. The applicant constructed and operates thereat a bulk coal loading facility where coal is received, handled, stored and loaded onto vessels.

[7]                 The respondent is a public authority created by the Act. It is an agent of the Crown, with the power to manage and administer the Crown land in the Port of Vancouver.

[8]                 The first phase of Roberts Bank, Pod 1, was constructed by the NHB in 1969, at a cost of approximately $5.5 million. The area of Pod 1, consisting of about 54 acres of reclaimed land and 14 acres of foreshore and/or waterlot, was leased to the applicant under the terms of a lease entered into prior to March 1, 1982.

[9]                 The Lease Agreement, entered into on March 1, 1982 for an initial term of 20 years, terminates on February 28, 2002. The applicant is entitled to two 10-year renewals for the period March 1, 2002 to February 29, 2012, and March 1, 2012 to February 28, 2022. I understand that the applicant has exercised its first 10-year right of renewal to February 29, 2012.

[10]            Pursuant to the Lease Agreement, the NHB undertook to spend $48 million to expand Roberts Bank from Pod 1, occupied by the applicant, to four Pods totalling approximately 284 acres. The applicant was to occupy Pods 1 and 2, totalling approximately 130 acres. The NHB's intentions were, at that time, to lease Pods 3 and 4 to another tenant.

[11]            The respondent owns and operates Deltaport, a container terminal facility which occupies Pods 3 and 4. Deltaport began operations on Pod 4 in 1993 and on Pod 3 in the year 2000. Since 1993, Terminal Systems Inc. has been operating Deltaport for the respondent under a terminal service agreement that is in effect until December 31, 2003. The applicant submits that although the respondent earns revenue from Roberts Bank and from Deltaport, it has not used any part of that revenue to contribute to the cost recovery for construction of Roberts Bank, which would reduce the rents payable by the applicant under the Lease Agreement.

[12]            By reason of its expenditure of $48 million for the expansion of Roberts Bank, the NHB demanded rental rates of the applicant which would produce a return, over the life of the lease, of 16% to 18% on its capital investment. The applicant points out that in setting the rates payable under the lease, the NHB insisted that the cost recovery and return on its investment extend to Pods 3 and 4, which were not to be occupied by the applicant.

[13]            The rates payable by the applicant are made up of two components. Firstly, a portion of the rent is calculated according to the tonnage of coal shipped through the applicant's terminal. This is called "participation" rent and is a charge based on a minimum annual tonnage, with a provision for an additional charge on tonnage handled over and above the minimum tonnage. The second component of the rent is the "base" rent. This charge does not fluctuate, as it is an annual land and waterlot rental charge.

[14]            It is not disputed that the Lease Agreement and, a fortiori, the rates payable thereunder were freely negotiated by the applicant and the respondent.

[15]            The Lease Agreement also provided that the rates were to be increased every three years, at a rate of 30% or the Consumer Price Index, whichever was greater. By 1996, the rate of increase of the base rent and of the minimum annual tonnage charge was reduced to 3% per annum, while the excess tonnage charge continued to increase at a rate of 30% every three years.

[16]            The Lease Agreement was amended twice. In 1989, the respondent agreed to forego approximately $25 million in rent so as to subsidize construction by the applicant of a new coal pumper. In 1996, the respondent unilaterally agreed to a reduction in the rate of escalation in lease payments for the period 1996-2002. The respondent also agreed to waive the escalators for the year 1999.

[17]            According to the applicant, the lease rates have more than tripled since March 1, 1982 and that, as of the time of the commencement of its judicial review proceedings, it was paying a sum of approximately $14.6 million annually to the respondent. By reason of the annual rate increases, the applicant is now paying to the respondent an annual sum of approximately $16 million.

[18]            The respondent is entitled to review and fix the rate payable for the three-year period commencing March 1, 2002, and on every third anniversary date thereafter, until the end of the two renewal terms in 2022.

[19]            The rates payable pursuant to the Lease Agreement constitute approximately 20% of the respondent's entire operating revenue. In fact, rents collected by the respondent on all of its leases (approximately 300) constitute almost 50% of the respondent's total revenue.

[20]            In support of its assertion that the rates payable under the Lease Agreement are unfair, the applicant submits that although the respondent is entitled to a reasonable rate of return on its investment, the revenues now collected by the respondent are "grossly in excess of what is required to provide the VPA with a fair rate of return on the capital invested to build Roberts Bank". The applicant submits that it has paid, since 1982, a sum in excess of $175 million, which is three times the total capital costs of constructing Roberts Bank and more than six times the capital costs of constructing that portion of the property that the applicant's coal terminal actually occupies. Furthermore, according to the applicant, it has invested over $200 million of its own money for improvements at its coal terminal, including trackage, buildings and coal-loading equipment.

[21]            By its judicial review proceedings, the applicant is seeking a non-scheduled review of the rent payable under the Lease Agreement on the grounds that the rent is unfair and unreasonable, and that it discriminates against the applicant. Whether the applicant is correct in its assertion is not an issue which I must decide in the context of this Rule 107(1) motion. My task herein is to provide answers to the five questions in respect of which Prothonotary Hargrave gave leave. However, before proceeding, I should set out those provisions of the Act which are relevant to the determination which I must make:

[22]            I now turn to questions 1 and 2:

Question #1: Are the "Lease Rates" (as defined in the Notice of Application) "fees" within the meaning of the Canadian Marine Act, S.C. 1998 c. 10 (the "Act")?

Question #2: Does s. 49 of the Act have any application to the Lease Rates?

For the reasons that follow, my answer to both of these questions is no.

[23]            I begin, as I must, with the definition of "fees" in subsection 2(1) of the Act. The definition provides that " ‘fees' include harbour dues, berthage and wharfage, as well as duties, tolls, rates and other charges". The French version of the Act defines the word     « droits » as follows: "Toute forme de taxes, droits, péages, contributions ou prix. Sont inclus dans la présente définition les droits d'amarrage, les droits d'accostage et les droits de port."

[24]            The applicant submits that the word "fees" should be given its plain and ordinary meaning which, it submits, includes lease rates. According to the applicant, the words "and other charges" are broad enough to include rent payments. The applicant further submits that Parliament's intention was to include in the word "fees" all possible sources of revenue available to a port authority, including the lease rates.

[25]            The applicant places great reliance on the words "and other charges" in support of its argument that "fees" include the lease rates. However, as the respondent points out, the word "include" is not open-ended. Ejusdem generis, which Black's Law Dictionary, 7^th Edition, West Group, 1999, p. 535, defines as "a canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed", is relevant to the interpretation of the word "fees".

[26]            It is clear, in my view, that Parliament did not intend to limit "fees" to those items specifically enumerated in the definition. The question then is whether the lease rates can be included in the definition. In my view, they cannot. There is, no doubt, a common feature between the items enumerated in the definition, in that they all constitute charges which are traditionally fixed by a port authority, usually through a tariff or other similar document, for services provided to those who use the port.

[27]            For example, wharfage is a charge payable for moving goods across a wharf. As to berthage, it is a charge payable by a ship for the right to tie up alongside a berth. Harbour dues are charges payable for the right to enter a harbour. All of these charges are not, as a general rule, negotiated between the port authority and its users. They are "imposed" by way of a tariff published by the port authority, and the users of the port have no say in the establishment of these charges.

[28]            In my view, the rates payable by the applicant under the Lease Agreement have nothing in common with the items enumerated in subsection 2(1) of the Act. Further, unlike the enumerated items, the lease rates payable by the applicant to the respondent were freely negotiated, and not unilaterally imposed by the port authority.

[29]            If I were to stop my inquiry here, I would have no hesitation in concluding that "fees" do not include lease rates. I also find support for this view in the French version of the Act. The word "droits", as defined in subsection 2(1), makes it even clearer that lease payments are not included. However, I am bound to examine other relevant sections of the statute in order to determine Parliament's true intention.

[30]            Sections 44 to 48 of the Act come under the heading of "Property", while sections 49 to 53 come under the heading of "Fees". Thus, Parliament appears to have made a distinction between a port authority's power to lease property and its power to fix "fees" under paragraphs 49(1)(a), (b) and (c) in regard to the following:

(a) ships, vehicles, aircraft and persons coming into or using the port;

(b) goods loaded on ships, unloaded from ships or transhipped by water within the limits of the port or moved across the port; and

(c) any service provided by the port authority, or any right or privilege conferred by it, in respect of the port.

[31]            A port authority's power to manage federal real property derives from the letters patent issued to it by the Minister. Subsection 44(6) of the Act provides that "a port authority may manage, occupy or hold only the real property set out in its letters patent". Paragraph 45(1)(b) provides that the port authority may keep the revenues received in respect of the property under its management and use those revenues to operate the port. Subsection 45(3) allows a port authority to lease any federal real property under its management, but leases are not to exceed the maximum term prescribed in the letters patent.

[32]            The Act does not place any restriction on the port authority with respect to the amount of rent which it may collect under the negotiated leases and no evidence was adduced with respect to any restriction which might have been imposed in the letters patent.

[33]            Sections 49 to 53 of the Act, on the other hand, do not, in my view, have any bearing on leases entered into by a port authority. Firstly, it is clear upon a reading of subsection 49(1) that the "fees" which are dealt with in those sections are of a completely different nature than the leases which might be entered into by the port authority pursuant to subsection 45(3). Under subsection 49(1), the port authority is given the power to fix "fees" in respect of the matters which are set out therein at pargraphs 49(1)(a) through (c). In respect of those fees which it may have fixed, the port authority may also fix the interest rates on overdue fees.

[34]            Subsection 49(3) provides that a port authority must fix fees at a level which will allow it to operate "on a self-sustaining financial basis" and that those fees must be "fair and reasonable". Further, subsection 50(1) provides that a port authority shall not discriminate among its users or classes of users, or give an undue or unreasonable preference to any user or class of users. However, subsection 50(2) makes it clear that differentiation among users or classes of users by reason of the volume or value of goods shipped, or on any other basis "that is commercially acceptable" does not constitute unjust discrimination or undue or unreasonable preference. As to subsection 51(1), it provides that when a port authority intends to fix a new fee or revise an existing fee for wharfage, berthage or harbour dues, notice thereof must be given in accordance with subsections 50(2), (3) and (4), and that the new fee will not come into force before 60 days have expired after the last of the notices is given.

[35]            Finally, subsection 52(1) provides that any interested person may file a complaint with the Canadian Transportation Agency on the grounds that a fee fixed by the port authority under subsection 49(1) constitutes unjust discrimination.

[36]            In my view, the "fees" which constitute the subject matter of sections 49 to 53 of the Act do not include the lease payments made under the Lease Agreement. Clearly, paragraphs 49(1)(a), (b) and (c) cannot, in any way, be connected to freely-negotiated leases. I agree entirely with Mr. Kirkham, counsel for the respondent, that sections 44 to 48 of the Act, coupled with the letters patent issued by the Minister, constitute a complete code governing a port authority's power with respect to the leasing of federal property in the port under the authority's jurisdiction.

[37]            I cannot agree with the applicant's argument that the base rent paid by the applicant to the respondent "falls squarely within the wording of subsections 49(1) and (2) of the Act". In my view, the rent is not being paid in respect of "any right or privilege conferred by [the respondent] in respect of the port [of Vancouver]". Rather, the base rent is being paid by the applicant to the respondent pursuant to the terms and conditions of the Lease Agreement entered into on March 1, 1982. Again, I wish to point out that it is clear that under subsection 49(1), the "fees" are fixed by the port authority. The port authority has no obligation to discuss or negotiate the fees prior to fixing them. Subsection 49(3) requires fairness and reasonableness only in respect of those "fees" fixed by the port authority. Fairness and reasonableness are not required, in my view, either with respect to payments that are negotiated or with respect to lease payments made under freely-negotiated lease agreements.

[38]            A considerable portion of its total revenue comes from the leases negotiated by the respondent with respect to federal real property in the Port of Vancouver. I suspect that this is also the case with all of the other port authorities in Canada and, consequently, that information must have been known to Parliament when it enacted the Act. Had it been Parliament's intention to include lease payments in the definition of "fees", I have no doubt whatsoever that Parliament would have expressly stated its intention. In my view, Parliament's silence can only mean that it did not intend to include lease payments in the definition of "fees".

[39]            Both sides made arguments concerning section 53 of the Act, which reads as follows:

53. A port authority may agree, by a contract that the parties may agree to keep confidential, to accept fees in respect of the persons and things set out in paragraphs 49(1)(a) to (c) that are different from the fees fixed under those paragraphs.

[40]            In my view, section 53 is of no help to the applicant, since it clearly has application only in respect of the fees which the port authority has the power to fix under subsection 49(1). Since I have come to the conclusion that the lease payments are not "fees", I need not further consider section 53.

[41]            With respect to the Act's predecessor statutes, the National Harbours Act, 1936, and R.S.C. 1970, and the Canada Ports Corporation Act, R.S.C. 1985, c. C-9, on which the applicant relies for its view of the Act, I agree with the respondent that the former statutes demonstrate that "rents" and "fees" have always been separately regulated. "Fees" for the use of port property were not, under those statutes, rents under leases of land in the port. In my view, a close examination of the predecessor statutes supports the interpretation of the Act which I favour.

[42]            For these reasons, I conclude that questions 1 and 2 must be answered in the negative.

[43]            I now turn to the third question:

Question #3: Does s. 50 of the Act have any application to the Lease Rates?

[44]            Subsections 50(1) and (2) of the Act read as follows:

50. (1) 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.

50. (2) It is not unjust discrimination and it is not an undue nor an unreasonable preference or disadvantage for a port authority to differentiate among users or classes of users on the basis of the volume or value of goods shipped or on any other basis that is generally commercially accepted.

[45]            In my view, the answer to this question is, once again, no.

[46]            Firstly, Mr. Carr-Harris, for the applicant, argued that the application of subsection 50(1) was not limited to "fees". I do not agree. Even though the subsection makes no reference to "fees", it can only be interpreted as applying to the subject matter of sections 49 to 53, i.e. the "fees" fixed by the port authority under subsection 49(1).

[47]            Subsection 50(1) must be read with subsection 52(1), which provides that an interested person may file a complaint with the Canadian Transportation Agency on the grounds that a fee fixed by a port authority under subsection 49(1) is discriminatory. It is clear that the discrimination in regard to which a person may file a complaint is discrimination in regard to the fees fixed by a port authority under subsection 49(1). The wording of subsection 52(1) confirms my view that subsection 50(1) only applies to "fees" which have been fixed by the port authority.

[48]            As I am of the view that the rents payable by the applicant under the Lease Agreement are not "fees", I can only conclude that section 50 does not apply to the lease rates.

[49]            Mr. Kirkham argued that applying section 50 to negotiated rental rates would be "impractical". I agree entirely with him that doing so would lead to strange results. At paragraphs 108 to 110 of his Memorandum, Mr. Kirkham makes the following submissions:

108.         Also, to apply s. 50 to negotiated rental rates is impractical. Times change. It may be that some particular businesses may fall on hard times and be unable to pay lease rates previously agreed to. A port authority should be free to renegotiate with any tenant if it wishes to do so. If Westshore's argument is correct, then any such negotiation, leading to a lower rate for one tenant, would immediately be discriminatory against all others, and offend s. 50, or would establish a basis to say that other leases, not re-negotiated, had become unfair and unreasonable because of concessions granted to an individual tenant.

109.         Similarly a port authority should be free to enter into a new lease at the existing market rate. Given that market rates change, Westshore's argument is that the VPA must refix every rate for every tenant in accordance with the "new" rate. This is completely impractical.

110.         Westshore's entire argument under s. 50 is premised upon the proposition that a port authority is a "public practical monopoly" like a utility, and is therefore restricted to a fair rate of return, which cannot vary from customer to customer. The argument under s. 50 closely tracks the common law monopoly argument (Question 4).

[50]            It goes without saying that even if impractical, I would not hesitate to apply section 50 to negotiated rental rates if the statute could bear that interpretation. However, as I have made perfectly clear, it is my view that the statute cannot be so interpreted.

[51]            I am, therefore, of the view that the third question must be answered by a no.

[52]            I now turn to the fourth question:

Question #4: If the Vancouver Port Authority ("VPA") is found to have a practical monopoly over the supply or provision of access to the Port of Vancouver, does the common law governing "practical monopolies" impose any duties upon the VPA in respect of the Lease Rates?

[53]            For the purposes of this motion, the parties have assumed that the respondent holds the position of a practical monopoly, as that phrase is defined at common law. Thus, the question which I must answer is whether the common law governing "practical monopolies" imposes any duties upon the respondent in respect of the lease rates.

[54]            The common law principle, on which the applicant relies, is as described in Chastain v. British Columbia Hydro and Power Authority (1972), 32 D.L.R. (3d) 443 (B.C.S.C.), where at page 454, the Court stated:

The obligation of a public utility or other body having a practical monopoly on the supply of a particular commodity or service of fundamental importance to 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.

[55]            The applicant's argument on this point is found at paragraphs 111 to 114 of its Memorandum of Fact and Law:

111.         If, despite the arguments set out above [to the effect that the lease rates are "fees" within the meaning of sections 49 and 50 of the Act], it is determined that the Lease Rates are not "fees" under the Act and, therefore, that they are not covered by the requirement of "fairness and reasonableness" set out in s. 49(3) of the Act; and, if it is further determined that the more general prohibition against unjust discrimination contained in s. 50 of the Act does not apply to the Lease or to any other agreement signed by a port authority in connection with its public duty to manage and administer Crown land in Canada's ports; then, Westshore submits that the common law duties and obligations governing practical monopolies must apply to the VPA. Absent express statutory language to the contrary, Westshore submits that the VPA is required to provide access to port property a nd services to all who seek them for a reasonable price and without unreasonable discrimination between those who are similarly situated or who fall into one class of consumers.

112.         The VPA's fee structure is unfair if it generates more revenue than is required to cover its costs and provide a fair return on the value of its land and equipment. Fair tolls vary with the times, and the fact that Westshore contracted to pay higher tolls at an earlier date is not determinative. If the Court finds that the VPA's rate structure is unfair, then Westshore is entitled to a remedy.

113.         If there is a distinction between the fees that the VPA charges Westshore and those that it charges to Westshore's closest competitor, Neptune (not to mention other users of port land like TSI), then the VPA would have to show some rational or relevant basis for this discrimination. If it cannot, then Westshore is entitled to a remedy. The VPA is not entitled to contract out of its legal duties.

114.         Accordingly, Westshore submits that the common law governing practical monopolies does impose duties upon the VPA in respect of the Lease Rates.

[56]            I note, as was pointed out by the respondent, that no court decision has been found where it was held that a lease of real property was subject to the common law monopoly rules. I also note that the contract at issue in Chastain, supra, was a contract of adhesion and that, consequently, the customers of B.C. Hydro had no choice. If they wished to receive electricity, they had to agree to the terms and conditions "imposed" by B.C. Hydro. In the case at bar, the applicant has not asserted that it had no choice. The factual situation herein is entirely different from that which normally prevails when a utility is offering services to those who wish to obtain these services.

[57]            The respondent, with respect to the leasing of Crown land in the Port of Vancouver, acts as agent for the Crown. As there is no evidence nor authority suggesting that the Crown is subject to the common law monopoly rules, I must conclude that the respondent, as agent for the Crown, is not subject to the common law monopoly principles, when leasing Crown land.

[58]            In any event, I am of the view that if there was a common law obligation imposed on port authorities, then that duty has been codified by the enactment of sections 49 and 50 of the Act. As those sections, in my view, do not apply to payments made under the Lease Agreement, that is the end of the matter.

[59]            The answer, therefore, to question 4, is no.

[60]            I now turn to the fifth and last question:

Question #5: Does this Court have any jurisdiction to grant Westshore any of the relief requested in the prayer for relief following paragraph 57 of the Notice of Application?

[61]            Firstly, I note that for the purposes of the applicant's judicial review application before the Trial Division of this Court, the respondent accepts that it is a federal board or commission within the meaning of section 18.1 of the Federal Court Act. The respondent has indicated that it reserves its right to raise that specific issue on any appeal to the Federal Court of Appeal or to the Supreme Court of Canada.

[62]            The applicant submits, and the Federal Court of Appeal has so held, that the Court's power to review governmental conduct is not limited to a "decision or order" of a federal tribunal. The Court's power extends to "any matter in respect of which a remedy may be available under section 18 of the Federal Court Act". Thus, declarations or mandamus are available, even though no specific order or decision is at issue [see. Krause v. Canada, [1999] 2 F.C. 476].

[63]            In the present matter, the applicant has commenced judicial review proceedings following the respondent's refusal or failure to modify its base rent and tonnage charge. Specifically, the applicant, as I have already indicated, takes the position that the rates payable under the Lease Agreement are unfair, unreasonable and discriminatory. In challenging the respondent's failure to, in effect, reduce the lease rates, the applicant is relying on sections 49 and 50 of the Act, and is also relying on the common law principles governing the conduct of public utilities and other bodies which have a "practical monopoly" over the supply of a particular commodity or service.

[64]            In my view, it cannot be seriously argued that this Court is without jurisdiction to grant the applicant relief in appropriate circumstances. If the lease rates are "fees" within the meaning of the Act, then this Court certainly has the jurisdiction to provide a remedy to the applicant. As to what the appropriate remedy is, I need not decide, nor discuss any further.

[65]            I note that in paragraph 133 of its Memorandum of Fact and Law, the respondent takes the position that the issue herein is not a question of jurisdiction, but rather "it is a question of the appropriate relief to be granted by the Court in the exercise of its discretion".

[66]            If this Court were to find that the respondent either exceeded its jurisdiction or made a decision based on irrelevant or improper considerations, then a remedy would be provided to the applicant. Again, as I have just indicated, I do not have to decide that issue at the present time.

[67]            My answer, therefore, to the question is a qualified yes. This Court does have jurisdiction to grant relief to the applicant, if it is able to satisfy this Court that there are sufficient grounds for this Court to intervene. In that regard, I refer specifically to paragraph 18.1(4) of the Federal Court Act.

[68]            For these reasons, an Order will be issued answering the five questions as follows:

Question #1:    Are the "Lease Rates" (as defined in the Notice of Application) "fees" within the meaning of the Canadian Marine Act, S.C. 1998 c. 10 (the "Act")? - NO.

Question #2: Does s. 49 of the Act have any application to the Lease Rates? - NO.

Question #3: Does s. 50 of the Act have any application to the Lease Rates? - NO.

Question #4: If the Vancouver Port Authority ("VPA") is found to have a practical monopoly over the supply or provision of access to the Port of Vancouver, does the common law governing "practical monopolies" impose any duties upon the VPA in respect of the Lease Rates? - NO.

Question #5: Does this Court have any jurisdiction to grant Westshore any of the relief requested in the prayer for relief following paragraph 57 of the Notice of Application? - YES, AS QUALIFIED BY THE REASONS FOR ORDER.

[69]            I invite the parties to contact me through the Registry, so as to fix a date for arguments on the issue of costs.

                                                                                               Marc Nadon

                                                                                                       JUDGE

O T T A W A, Ontario

February 22, 2002