Prti Transport Inc. v. Canada (Vancouver Port Authority), docket T-1778-99

Date: 19991018

Docket: T-1778-99

BETWEEN:

     PRTI TRANSPORT INC.,

     Applicant,

     - and -

     VANCOUVER PORT AUTHORITY,

     Respondent.

     REASONS FOR ORDER

ROULEAU, J

[1]      This matter came before me on Friday, October 8, 1999, at Vancouver. On Thursday, October 7, 1999, after filing an application for judicial review concerning a decision rendered by the Respondents on October 6, 1999, the Applicants requested an urgent hearing seeking the following remedies:

1.      An Order that the Respondent be restrained until a determination by this Honourable Court of the judicial review application in these proceedings or further order from:

(a)      Obstructing or denying access to the Vanterm, Centerm or Deltaport marine terminals or roads leading to these terminals, to the Applicant and the dependent contractors providing trucking services to or on behalf of the Applicant.

(c)      Interfering with the business, contractual or economic relationships between the Applicant and its certified Union, employees, dependent contractors, customers, suppliers or others in privity of contract with the Applicant.

(d)      Inducing or procuring a breach or breaches of contract between the Applicant and its certified Union, dependent contractors, customers, suppliers or others in privity of contract with the Plaintiff.

(e)      Threatening, inducing, supporting, encouraging, condoning or procuring the commission of the unlawful acts and breaches referred to in the paragraphs above.

2.      The appointment of a special hearing date, and an exemption from Rules 364 and 366, on the basis of urgency.

[2]      Essentially what was being sought was an injunction prohibiting the Respondents from refusing access to marine terminals in the Greater Vancouver Port to certain dependent truckers who are affiliated or associated with this Applicant; in the alternative, an order in the nature of mandamus directing the Respondent to issue licences to the various dependent truckers associated with the Applicant in order that they could have access and continue to serve various customers requiring the movement of container traffic to or from the Port of Vancouver.

[3]      I dismissed the application from the bench and gave brief oral reasons. I was advised subsequently that counsel for the Applicant sought written reasons in order to pursue further and other remedies.

[4]      May I note at the outset that this was an urgent application and the Respondent"s counsel though he appeared and argued was unable to provide the Court with any affidavit evidence in order to rebut the allegations relied upon by counsel for the Applicant in their factual brief derived from the affidavit of an officer of the Applicant.

[5]      A brief history of what has occurred is perhaps warranted at this time. The Applicant is an intra motor trucking company providing cargo transportation services and has a place of business in Delta, British Columbia where it maintains an office and operates an off dock facility for steamship lines to handle and store loaded and empty containers.

[6]      PRTI retains approximately 73 owner operators of trucks (dependent contractors) as well as office personnel. The dependent contracts own their own vehicles and contract their equipment and labour services to the Applicant for the purpose of delivering and picking up cargo at points within British Columbia and the United States of America. I gather from the evidence (the Affidavit submitted on behalf of this Applicant) that the Applicant does not own any special licences nor does it own any vehicles but provides the services of assembling and dispatching various independent truck owners who provide the transportation for customers that request services from the Applicant.

[7]      The Respondent, Vancouver Port Authority is a port authority incorporated pursuant to section 12(1) of the Canada Marine Act chapter 10, published in the Revised Statues of Canada 1998, which statute was Assented to in June of 1998; pursuant to the Canada Marine Act letters patent where issued effective March 1, 1999, creating the Greater Vancouver Port Authority which has a head office in the city of Vancouver in British Columbia. The statute in section 4 provides the following:

It is hereby declared that the objective of this Act is to

(a) implement a National Marine Policy that provides Canada with the marine infrastructure that it needs and that offers effective support for the achievement of local, regional and national social and economic objectives and will promote and safeguard Canada"s competitiveness and trade objectives.

The port authority then derives its powers under section 28 of the Act which reads as follows:

28. (1) A port authority is incorporated for the purpose of operating the port in respect of which its letters patent are issued and, for that purpose and for the purpose of this Act, has powers of a natural person.

(2) The power of a port authority to operate a port is limited to the power to engage in

(a) port activities related to shipping, navigation, transportation of passengers and goods, handling of goods and storage of goods, to the extent that those activities are specified in the letters patent.

[8]      The Canadian Owner Operators Workers Association Local 2001 (COOWA) is certified to represent the dependent contractors retained by PRTI. A collective agreement was entered into between this Applicant and it"s dependent truckers on December 31, 1998, and was to remain in effect until December 31, 2000, with a monetary re-opener during the second year.

[9]      Between the period of July 22, 1999, and August 20, 1999, dependent contractors retained by PRTI engaged in an illegal strike contrary to the Canada Labour Code and Article 31.02 of the Collective Agreement. PRTI filed a grievance against the union regarding this action.

[10]      During the period of the illegal strike, dependent contractors retained by PRTI joined several hundred local haul truck drivers, the majority of whom are represented by the Teamsters Local Union No. 31 and COOWA Local 2001, in the withdrawal of container hauling services. The purpose of the withdrawal of services was primarily to protest the long wait times at marine terminals located on property managed by the Vancouver Port Authority when picking up or dropping off containers for inbound and outbound vessels.

[11]      Due to congestion and other factors of the marine terminals, waiting times had been inordinate and owner operators had suffered a decrease in income. The response of the Teamsters Local Union No. 31 and COOWA to this problem was to engage in an action designed to force employers, such as this applicant, to make compensation payments based on hourly rates as opposed to zone travelling rates.

[12]      As a result of the illegal strike, informal picket lines were erected at and around entrances to the Port of Vancouver. This action effectively restricted access and immobilized trucking activity at the Port. The strike ended on or about August 20, 1999, when the Vancouver Port Authority implemented a licencing system which included as a condition a "fare return" provision.

[13]      The implementation of licencing system was an integral part of the settlement of the strike and the Memorandum of Understanding was executed by the Teamsters, COOWA and some employers.

[14]      PRTI was not a party to the settlement proposal and did not sign the Memorandum of Agreement. The terms of the licence issued by Vancouver Port Authority would deny access to its property to any trucking company that did not execute the licence agreement.

[15]      The licence agreement required that the trucking companies pay its drivers a "fair return" for work performed within the Port of Vancouver. This primarily related to the waiting time that the drivers would encounter at the dock. It did not in anyway refer to existing rates with respect to trips to and from stated pickup and delivery points.

[16]      What led to the labour dispute and finally the resolution thereof, was insuring that all trucking companies using port facilities paid an hourly rate to drivers for waiting time while waiting on VPA property.

[17]      There is evidence before me that the July August strike caused the local and regionally economies to suffer a loss in excess of fifty million dollars.

[18]      After being denied access by its dependent contracts PRTI reluctantly agreed to execute a licencing agreement with the Vancouver Port Authority on August 27^th after apparently having negotiated an agreement with COOWA with respect to remuneration for waiting time and that this agreement was to persist until December 31, 1999. Though PRTI executed the licence agreement with the Vancouver Port Authority it still did not agree to pay an hourly rate to its dependent contractors nor did they provide such an undertaking with the Vancouver Port Authority.

[19]      On September 20, 1999, COOWA submitted a complaint to the Vancouver Port Authority that PRTI was in violation of the licence agreement in not paying hourly rates to its dependent contractors.

[20]      The Applicant was adamant that they had a Memorandum of Agreement and Understanding with COOWA and that that should be sufficient; that there should be no imposition of an hourly rate by the Vancouver Port Authority since they would be interfering, with the on going labour negotiations between this Applicant and the Union representing its dependent truckers.

[21]      On October the 4th , Vancouver Port Authority demanded that PRTI advise whether it paid dependent contractors an hourly rate while on port property. On October 5^th, PRTI replied that it paid its dependent contractors in accordance with its contractual obligations as set out in it"s existing collective agreement.

[22]      On October 5, 1999, the VPA terminated the licence agreement between the VPA and PRTI and revoked all permits authorizing access to the VPA property for PRTI dependent contractors and the reason for the termination and the revocation was that the VPA had concluded that PRTI was not paying its dependent contractors an hourly rate for waiting time. On October the 6th as a result PRTI dependent contractors were refused access to Vancouver Port Authority property.

[23]      The Applicants were advised that the licences would be renewed if they agreed to pay its dependent contractors hourly rates while on VPA property. PRTI refuses to comply with this request alleging that it is a party to a collective agreement that was freely negotiated with the union certified to represent dependent contractors.

[24]      It is alleged by the Applicants that the responsibility of VPA is to run the port but that they have no power to regulate wage rates between carriers and their dependent contractors property and to improperly insert itself into the current discussion between PRTI and COOWA regarding wage rates.

[25]      The Applicants are alleging that they have lost a considerable amount of business and will suffer considerable monetary damages as a result of them being unable to provide services to their clients; they will suffer a considerable loss business.

[26]      In it"s submissions with respect to granting the relief sought in this emergency application it was argued that the Respondent Vancouver Port Authority did not have the power or authorization under the statute or under their patent to regulate hourly rates that should be paid to truckers.

[27]      A history of the events as revealed by the Applicant in their Affidavit filed in support of this motion clearly indicates that the trucking industry and the port authority were experiencing a great deal of difficulty during the months of July and August of 1999; that the strike or slowdown for the delivery of cargo and the unloading or loading of vessels was considerably hindered and it cost the Port of Vancouver and the economy of the region in excess of fifty million dollars. It was also evident that none of the other owners nor any of the other unions had joined in this application to deviate from the licencing agreement which had been entered into in August of 1999. Though there is no evidence before me I am of the view that the Court can take judicial notice that should it grant the injunctive relief sought, and access to the VPA property without any assurance of the "fair return" it could bring about labour strife at the port.

[28]      In the legal submission that were made at the outset it was agreed that this Court had jurisdiction to entertain the application. I then considered whether or not they were seeking judicial review of a decision, taken by VPA on the 23^rd of August, 1999, which would be well beyond the 30 day period as prescribed under section 18.1(2) of the Federal Court Act; no leave having been granted to extend the time to bring the application, nor the issue argued.

[29]      I nevertheless was prepared to entertain submissions from the parties and applying the tripartite test I was satisfied that any irreparable harm or the balance of convenience certainly favoured the Respondent. In addition I further found that should the Applicant be correct in its assertion that the Vancouver Port Authority had no right to interfere with the conduct of the truckers that were associated with this Applicant, there was ample resources in the hands of the Vancouver Authority to pay any damages should they be successful in their action.

[30]      The most adamant argument advanced by the Applicant was that the port authority was not in a position to dictate hourly wages to the private trucking industry. I am satisfied that pursuant to section 28 of the Canada Marine Act the port authority has the power to engage in:

(a) port activities related to shipping, navigation, transportation of passengers and goods, handling of goods and storage of goods, to the extent that those activities are specified in the letters patent; and

(b) other activities that are deemed in the letters patent to be necessary to support port operations.

The letters patent also provide as follows:

7.1 Activities of the Authority Related to Certain Port Operations. To operate the port, the Authority may undertake the port activities referred to in paragraph 28(2)(a) of the Act to the extent specified below:

(a) development, application, enforcement and amendment of rules, orders, bylaws, practices or procedures and issuance and administration of authorizations respecting use, occupancy or operation of the port and enforcement of Regulations or making of Regulations pursuant to section 63(2) of the Act;

(c)(iii) the following uses to the extent such users are not described as activities in sections 7.1m 7.3 or 7.4:

(A)      uses related to shipping, navigation, transportation of passengers and goods, handling of goods and storage of goods, including the following activities to or for users of the port in connections with their use of the port and its facilities: marine and marina services, towing vessels, research services or facilities, ferry operations and movement of utilities.

As I see it the VPA did not impose any hourly wage on any of the unions or the owners that signed the agreement in August of 1999, that led to the strike settlement. They suggested a "fair hourly" rate be paid for waiting time while the truckers were on port business. It should be noted that in order to resolve the situation the authorities implemented scheduling which attained the objective of having the truckers being notified when their services would be required at the port thereby reducing waiting time considerably; the underlying issue of the problem that had occurred during the summer of 1999. The port authority certainly has the obligation to see to the proper handling of cargo at its port as well as its continuing on going business operation. I am satisfied that they have the power to licence those who are to have access to the port; the fact that they have suggested that the truckers be paid a fair wage for waiting time is only incidental to the overall purpose of regulating trucking and the movement of cargo at its port.

                             (Sgd.) "P. Rouleau"

                                 Judge

October 18, 1999

Vancouver, British Columbia

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS ON THE RECORD

COURT FILE NO.:      T-1778-99

STYLE OF CAUSE:      PRTI TRANSPORT INC.,

     v.

     VANCOUVER PORT AUTHORITY

PLACE OF HEARING:      Vancouver, British Columbia

DATE OF HEARING:      October 8, 1999

REASONS FOR ORDER OF      Rouleau, J

DATED:      October 18, 1999

APPEARANCES:

Ms. Damar Dlab      For the Applicant

Mr. Robert Grant      For the Respondent

SOLICITORS OF RECORD:

Harris & Company

Vancouver, BC      For the Applicant

Heena Blaikie

Vancouver, BC      For the Respondent