Date:
20070529
Docket: A-465-06
Citation: 2007
FCA 211
CORAM: DÉCARY
J.A.
LINDEN J.A.
SEXTON
J.A.
BETWEEN:
NANAIMO PORT
AUTHORITY
Appellant
and
CANADIAN TRANSPORTATION AGENCY,
KENMORE AIR HARBOUR INC., 547471 BC LTD.
(FORMERLY AMIGO AIRWAYS CORPORATION) and
SEAIR SEAPLANES LTD.
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on May
29, 2007)
SEXTON J.A.
[1]
This
appeal arises out of the imposition of certain passenger fees by the Nanaimo
Port Authority (NPA) upon passenger seaplane operators relating to passenger
services carried out by them into or out of Nanaimo Harbour.
[2]
The
seaplane operators (complainants) filed a complaint with the Canadian Transport
Agency (the Agency) arguing that there was unjust discrimination between
themselves and other passenger carriers using the port facilities. The
complainants argued that a situation of undue preference and undue disadvantage
was created between themselves and other carriers with whom they were in
competition.
[3]
The
fee imposed on the complainants was $1.50 for each passenger transported into
or out of Nanaimo
Harbour.
The complainants claimed that the other carriers either paid no passenger fees
or paid fees lower than those imposed on the complainants.
[4]
The
Agency found that the fees imposed on the complainants were unjustly
discriminatory and held that “a more reasonable approach would be to treat all
users equitably by charging the same passenger fees”. In making this finding,
the Agency carried out a thorough analysis of the different rates imposed by
the different carriers.
Standard of Review
(a) Privative Clause
[5]
Section
31 of the Canada Marine Act (CMA) states that findings of the Agency on
a question of fact within its jurisdiction are binding and conclusive.
[6]
Section
41(1) of the CMA provides that a decision of the Agency is subject to appeal
only on a question of law or jurisdiction.
[7]
These
sections suggest deference should be given to decisions of the Agency.
(b) Expertise of the Decision
Maker
[8]
The
Agency is an administrative tribunal with extensive expertise. This also points
to deference.
(c) Purpose of the Act
[9]
The
legislative purpose of the CMA is to provide the Agency with the necessary
authority to administer a complex and technical scheme for inter alia
managing complaints concerning fees set by port authorities. This suggests
deference.
(d) Nature of the
Problem
[10]
The
issue in this appeal involves the Agency’s conclusion based on evidence that
the NPA’s current passenger fee tariff was unjustly discriminatory. This also
suggests deference.
[11]
We
conclude that on issues of fact, the review of the Agency’s decision should be
on a standard of patent unreasonableness.
[12]
On
issues of mixed fact and law, the standard should be that of reasonableness simpliciter
[13]
On
issues of law, the standard is correctness.
[14]
We
are unable to conclude that the findings of fact made by the Agency were
patently unreasonable.
[15]
The
issue of what constitutes “unjust discrimination” is one of fact and law. The
Appellant argued that the Agency erred in interpreting this phrase. We do not
agree. The Agency said in its decision (para 72):
While section 50 of the CMA does allow
discrimination in fees between classes of users, the Agency is of the opinion
that where the classes of users are in direct competition with one another,
there cannot be any undue preference or undue disadvantage for one competitor
over another. If the notion that a fast ferry, BC Ferries and a float plane
operator are separate classes of users is accepted and the passengers carried
by each are used as a basis for a fee, then there should be equitable treatment
of these passengers. The Agency is of the opinion that the fact that the NPA
fixed a “passenger fee” for fast ferry operators that was lower than the
“passenger fee” fixed for float plane operators and a “passenger fee” for BC
Ferries that was much lower than the “passenger fees” for these two users
introduced undue preference and undue disadvantage between direct competitors.
The Agency finds that this created an additional element of unjust
discrimination in the passenger “passenger fees.”
We are unable to conclude that this finding
was unreasonable.
[16]
The
Appellant argues that the Agency erred in law in failing to interpret the Act
as permitting the NPA to charge fees on a commercial basis taking into
consideration costs of providing services. The Appellant says this because of
the Agency’s holding that passenger fees should be set equitably, that is
passengers should be treated the same. We do not accept the Appellant’s
argument. The Agency accepted that fees could be set taking into account
commercial realities but said that if the NPA was going to set fees unrelated
to cost, then it should do so in a non-discriminating manner. We interpret the
Agency’s reasons as leaving as an option to the NPA the possibility of setting
a tariff based not on passenger fees, but based rather on commercial principles
including cost. This might involve, by way of example, setting fees for ferries
as opposed to float planes based on the cost to the NPA of servicing the
various types of transport. If however, the NPA insists on maintaining
passenger fees as its basis for its tariffs, then it must do so on an equitable
basis. In this connection, the Agency said:
[42] As an overall policy matter, the
Agency finds that discrimination in fees (or the preference or disadvantage in
respect of fees) becomes unjust (or undue or unreasonable) when the fees are not
functionally and rationally connected to the costs of providing the service or,
as in the Adventure Tours Decision, are not otherwise integral to some
established broader economic strategy of the port authority. On this latter
point, for example, Member Tulk found that it was commercially acceptable for
the St. John’s Port Authority to offer tour boat operators a choice of renting
a Pier 7 kiosk or paying a levy per passenger for the use of Pier 7 as a
reasonable solution to the commercial viability of Pier 7.
[43] The Agency finds that the opposite
of “unjust fees” are fees that are “just” or “justifiable”. In the context
of sections 49 to 53 of the CMA, this means that the fees must at a minimum be
part of a cogent financial plan, one that is accepted as a general commercial
practice which, as far as a port is concerned, balances port commercial
viability, safety, security and fairness to port users. If the evidence in any
particular case shows that the fees in issue are random or arbitrary, even
if issued with the best of intentions, then they may run afoul of section 50 of
the CMA.
. . .
[74] After giving careful thought to the
situation faced by the NPA where it is not possible to establish any direct
relationship between some costs and individual port users and where an
assessment of the relative burden imposed on the NPA by these different users
is difficult, the Agency is of the opinion that a more reasonable approach
would be to treat all users equitably. In other words, if a port authority is
faced with this set of circumstances and is going to focus on passenger volumes
carried by different users as a basis for generating additional revenue, then
all passengers should be treated the same. This approach has been suggested by
the complainants where all passengers would be charged the same fee regardless
of the type of passenger service utilized. Such an approach would be a
straightforward means of generating additional revenue to cover revenue
shortfalls. As well, such an approach would not result in situations of undue
preference or undue advantage.
[Emphasis is mine]
[17]
For
these reasons, we would dismiss the appeal with costs to the Respondents with
the exception of the Canadian Transportation Agency which has not asked for
costs.
"J.
Edgar Sexton"
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