Kingcome Navigation Co. v. Canada ( Nanaimo Harbour Commission )
T-1917-93 / T-1918-93
Joyal J.
8/11/93
35 pp.
Application for judicial review of respondent's decision restricting carriage of dangerous goods to another area of harbour -- Applicants applied for leave to operate once-a-day public trailer-ferry service between Departure Bay in Nanaimo Harbour and Main Street in Vancouver Harbour -- Kingcome operating identical service on behalf of C.P. Coastal Marine for many years, but now intending to compete with C.P. using same vessel, master, crew -- Also wished to carry certain categories of dangerous goods as defined in Dangerous Goods Shipping Regulations i.e. small quantities of items such as acetylene tanks, aerosol spray cans, paint, car batteries -- Written authorization communicated to applicant on June 9, 1993 from respondent authorizing application on condition no dangerous cargo to be carried except in accordance with such terms as Harbour Master may require -- On July 5, 1993 respondent confirming original decision but restricting applicants in carriage of dangerous goods to Duke Point area of harbour -- Decision later set out in letter dated July 19, 1993 -- Duke Point located considerable distance from other two port facilities located close to downtown Nanaimo -- Duke Point developed as industrial, commercial area to ease congestion in harbour, and gentrify downtown portions of harbour -- Applicants' proposed service between midnight and 4:00 a.m. when traffic greatly reduced and minimal risks of collision -- Although inference of general policy expressed in generic terms to rehabilitate downtown areas by moving industrial and commercial traffic to Duke Point, no specific written policy prohibiting new services in harbour or carriage of dangerous goods in all areas except Duke Point until July 19 -- No prior designation of any place set aside for purpose of vessels carrying dangerous goods pursuant to Commission's By-Law -- Applicants alleging respondent failing to provide equality of access to harbour for all carriers; improperly revised June 9 decision by revoking permission to carry dangerous goods at all; improperly discriminated against applicants by allowing C.P. to continue its service; failed to afford applicants fair opportunity to answer respondent's concerns respecting carriage of dangerous goods -- Respondent stating decision consonant with policy objective to move commercial and industrial activities to Duke Point -- Application allowed -- July 5 letter interpreted as reversal of earlier decision -- Subsequent reasons for refusal merely ex post facto rationalization of newly articulated policy no further services would be allowed in downtown harbour area -- Policy not in mind when respondent originally permitted operation of applicant's ferry service from Departure Bay -- Policy considerations must be well-known to respondent and to people who wish to venture into marine business -- As to dangerous goods issue, applicants' service would not add to volume as their volume coming from C.P.'s existing and exclusive service -- Respondent not considering restriction imposed by Vancouver Harbour Commission against applicants carrying explosives, radioactive material or any bulk dangerous goods such as petroleum, chemicals or acids when considered application -- June 9 letter providing applicants with authorization required and consonant with applicants' representations -- Reversal of position not taking into consideration evidence of minimal increase in carriage of dangerous goods by applicants, and applicants' record of carrying such goods without incident for many years -- Unqualified prohibition discriminatory -- No opportunity provided to discuss ramifications of ad hoc policy -- Such ex post facto decisions not meeting tests of fairness, reasonableness, equity imposed upon decision-making authorities -- Decision-making authority which has received application, analyzed facts before it, considered areas of concern and allowed application cannot, based on subsequent elaboration of policy, effectively reverse itself to evident financial prejudice of applicants -- Retroactive effect of designations of various locations in downtown harbour pursuant to respondent's By-Laws constituting excess of jurisdiction -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4) (as am. by S.C. 1990, c. 8, s. 5) -- Harbour Commissions Act, R.S.C., 1985, c. H-1, ss. 3(1)(c), (2), 4, 13 -- Dangerous Goods Shipping Regulations, SOR/81-951.