Kingcome Navigation Co. v. Nanaimo Harbour Commission
A-680-93
Marceau J.A.
7/7/95
18 pp.
Appeals from Trial Division order quashing Nanaimo Harbour Commission decision forbidding respondent from transporting dangerous goods to or from Departure Bay -- Respondent operating trailer ferry service between Vancouver Harbour and Nanaimo Harbour (Departure Bay)-Nanaimo Harbour Commission, established pursuant to Harbour Commissions Act, sending respondent confirmation of permission to operate out of Departure Bay provided service not carrying dangerous cargo without prior approval (first letter) -- Upon respondent's request for approval to carry dangerous cargo, Commission maintaining one departure per day restriction and prohibition against carriage of dangerous cargo (second letter)-Commission then deciding to prevent any increase in volume of dangerous goods in Departure Bay, and on longer-term basis, to phase out handling of such goods, except at designated point (third letter) -- Commission's policy having effect of shutting respondent out of carriage of dangerous goods at Departure Bay while allowing established competitor to continue same -- Joyal J. (T-1917-93), finding first letter constituting "blanket permission" to carry on services including transportation of dangerous goods, decision subsequently reversed by Commission in furtherance of new vaguely conceived but not yet articulated policy -- Joyal J. concluding only first letter constituting valid decision -- First letter not amounting to "blanket permission" to continue ferry service without regard to dangerous cargo carriage issue; first letter merely intending to express qualified acceptance of new service -- Context and surrounding circumstances indicating reference in first letter to possible carriage of dangerous cargo speaking to mere eventual possibility rather than giving effect to respondent's intention-Second letter constituting Commission's first real decision disposing of clearly defined and properly considered request; second letter not reversal of attitude -- Commission at no time abandoning concern additional vessels creating congestion in harbour and potential for danger -- While general policy, applicable to all, respecting carriage of dangerous goods in harbour applicable to all might well be of legislative nature and as such not subjected to principles of natural justice, decision herein disposing of particular application and directly and specifically affecting rights and interests of individual applicant and thus subject to natural justice -- Commission's decision as confirmed by second and third letters not made in disregard of natural justice -- Commission not functus officio as second and third letters not constituting reversal of prior decision -- Decision not failing to meet standard of equity; inequality not in itself sign of inequity, i.e. lack of valid reason necessary -- Commission concluding, in good faith, expansion or increase in traffic carrying dangerous goods detrimental to navigation safety and proper use of harbour-Motions Judge's order set aside, respondent's application for judicial review dismissed -- Harbour Commissions Act, S.C. 1964-65, c. 32.