Date:
20070528
Docket: A-364-06
Citation: 2007 FCA 206
CORAM: DÉCARY
J.A.
LINDEN J.A.
SEXTON
J.A.
BETWEEN:
PRO-WEST TRANSPORT LTD. and
TEAM TRANSPORT SERVICES LTD.
Appellants
and
ATTORNEY GENERAL OF CANADA and
VANCOUVER PORT
AUTHORITY
Respondents
Heard at Vancouver,
British Columbia, on May 28,
2007.
Judgment delivered from the Bench at Vancouver, British Columbia, on May 28, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON
J.A.
Date:
20070528
Docket: A-364-06
Citation: 2007
FCA 206
CORAM: DÉCARY
J.A.
LINDEN J.A.
SEXTON
J.A.
BETWEEN:
PRO-WEST TRANSPORT LTD. and
TEAM TRANSPORT SERVICES LTD.
Appellants
and
ATTORNEY GENERAL OF CANADA and
VANCOUVER PORT
AUTHORITY
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on May 28,
2007)
SEXTON J.A.
[1]
The
Appellants, two trucking companies, which transport cargo containers on premises
operated by the Vancouver Port Authority (VPA), appeal from a decision of
Teitelbaum J. in which he dismissed an application for Judicial Review by the
Appellants who sought to quash an Order in Council issued by the Governor in
Council.
[2]
The
Order in Council directed the VPA to establish a licensing system under which
trucking companies were required to enter into a Memorandum of Agreement which,
inter alia, set the hauling rates to be paid to owner-operators of trucks
working for the Appellants. The Order in Council was issued in order to resolve
a dispute in which the owner-operators withdrew their services to pressure the
trucking Companies to fix hauling rates more suitable to the owner-operators.
[3]
Pursuant
to the Order in Council, the VPA entered into a Memorandum of Agreement with
the Appellants and accordingly licenses were issued to the Appellants and
transportation of the containers was resumed. The Memorandum of Agreement was
for a term of two years commencing in August 2005.
[4]
In
November 2006, a new licensing system was established for the Port by
regulations enacted pursuant to Section 62(1) of the Canada Marine Act
S.C. 1998, c.10. Consequently, the VPA issued a press release on December 1,
2006 stating that the existing licenses were valid only until January 15, 2007.
After that date trucking companies seeking access to the Port were required to
obtain new licenses pursuant to the new Regulations.
[5]
As
a consequence, the Respondents submit that because the licensing system at
issue in this appeal has been replaced by the new system mandated by the
Regulations, the appeal relating to the validity of the Order in Council and
the actions of the VPA in implementing the Order in Council has become moot.
[6]
We
agree. The Supreme Court of Canada in Borowski v. Canada [1989] 1
S.C.R. 342 established a two step test for mootness. First the Court must ask
whether a live controversy exists. If not, then the Court must consider whether
it should nevertheless exercise its discretion to hear the case. The criteria
to be considered in the exercise of this discretion are:
i) the issue
must arise in an adversarial context;
ii) Judicial economy must be considered;
iii) The Court must demonstrate an awareness of its proper lawmaking function,
being sensitive to its role as the adjudicative branch in our political
framework.
[7]
In
the present case, there is no live controversy. The licensing system and Order
in Council under attack no longer exist. The relief sought by the Appellants
includes declaring that the Order in Council and licenses granted under the old
licensing system are void. Such declarations, if granted, would have no effect
upon the parties’ rights now as they are governed by the new licensing system.
[8]
In
considering the exercise of discretion, although the case does exist in an
adversarial context, the second and third factors militate against the exercise
of discretion. The issues raised in the appeal are not brief nor are they
recurring, which are considerations taken into account in Borowski. Furthermore
there appears to be no pressing need to resolve questions relating to the
powers of the VPA or the Governor in Council relating to access to the port.
More importantly, the central issue in this case is whether the Governor in
Council had the authority to issue the Order in Council. By passing judgment on
this issue, the Court would be intruding into the political domain which does
not appear to be necessary at the present time. In Thorne's Hardware Ltd. v.
The. Queen, [1983] 1 S.C.R. 106, Dickson J. said it would take an egregious
case to warrant the Court striking down an Order in Council. The present case
does not qualify.
[9]
At
the hearing of this appeal, counsel for the Appellants argued that his clients
require a finding of the Court relating to the Order in Council so as to enable
them to sue the Respondents for damages relating to the Order in Council.
However, counsel did not direct the Court to any evidence in the material that
his clients have suffered damages or to any evidence that they intend to
advance such a claim. Furthermore, counsel for the Appellants made no attack on
the motives of the Respondents in imposing the old licensing system.
[10]
The
Appeal should therefore be dismissed as being moot. As the facts establishing
mootness occurred after the launching of the appeal, there should be no order
as to costs.
"J.
Edgar Sexton"
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-364-06
STYLE OF CAUSE: PRO-WEST
TRANSPORT LTD. ET AL v. AGC ET AL.
PLACE OF
HEARING: Vancouver, British Columbia
DATE OF
HEARING: May
28, 2007
REASONS FOR
JUDGMENT BY: DÉCARY
J.A.
LINDEN J.A.
SEXTON
J.A.
DELIVERED
FROM THE BENCH BY: SEXTON
J.A.
DATED: May 28, 2007
APPEARANCES:
Donald J.
Jordan Q.C. FOR
THE APPELLANTS
Judith Bowers
Q.C. FOR THE
RESPONDENTS
Lorne Lachance
Howard Ehrlich
Taryn Mackie
SOLICITORS
OF RECORD:
|
Taylor Jordan
Chafetz
Barristers
& Solicitors
Vancouver, B.C.
|
FOR THE
APPELLANTS
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
Bull, Housser
& Tupper LLP
Vancouver, B.C.
|
FOR THE RESPONDENTS
|
Email this Content