A-76-80
The Queen and National Harbours Board (Appel-
lants) (Defendants)
v.
Thorne's Hardware Limited, Kent Lines Limited,
Canaport Limited and Irving Oil Limited
(Respondents) (Plaintiffs)
Court of Appeal, Pratte and Le Dahl JJ. and Hyde
D.J.—Montreal, October 23; Ottawa, November
13, 1980.
Maritime law — National Harbours Board — Harbour
boundaries extended to include respondents' installations —
Appeal from refusal of Trial Division to declare Order in
Council invalid while declaring that the By-law concerning
harbour dues did not apply to the respondents' tankers —
Whether Trial Judge erred — National Harbours Board Act,
R.S.C. 1970, c. N-8, ss. 7, 8, 14(1)(e) — Harbour of Saint
John Boundaries Determined, SOR/77-621 — Tariff of Har
bour Dues, SOR/69-11,1.
The respondents are the owners of harbour installations near
Saint John. By Order in Council P.C. 1977-2115, the bound
aries of the Saint John Harbour were extended to include
respondents' installations and the Board began to collect har
bour dues. The appellants attack the Trial Division decision
which refused to declare the Order invalid but declared that the
By-law respecting the tariff of harbour dues did not apply to
the respondents' tankers entering the harbour.
Held, the appeal is allowed. There is no question that the
Governor in Council had the authority under subsection 7(2) of
the National Harbours Board Act to alter the boundaries of
the Saint John Harbour. The reasons for doing so cannot affect
the validity of the Order. Furthermore, the fact that the
respondents had harbour installations located in the area
annexed to the harbour does not mean that the Order is
discriminatory or invalid. As to the effect of the By-law, the
Board did not exercise any jurisdiction or control over the
respondents' property; it simply regulated the right of move
ment in the Saint John Harbour. This right is neither a private
right nor private property of the respondents. Section 8 of the
Act cannot be relied on. Finally, the dues are payable regard
less of whether services have been provided to the vessel.
Moreover, the imposition of such dues is authorized by the
early part of paragraph 14(1)(e) of the Act.
APPEAL.
COUNSEL:
C. Ruelland, Q.C. and P. Plourde for appel
lants (defendants).
M. St-Pierre and L. Langlois, Q.C. for
respondents (plaintiffs).
SOLICITORS:
Deputy Attorney General of Canada for
appellants (defendants).
Langlois, Drouin & Associés, Quebec City,
for respondents (plaintiffs).
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The plaintiffs-respondents are the
owners of harbour installations at Mispec Point,
near Saint John, New Brunswick. These installa
tions used to be located some distance from the
Saint John Harbour. This has no longer been the
case since July 21, 1977. On that day the Gover
nor in Council ordered by Order in Council P.C.
1977-2115 [SOR/77-621] that the Saint John
Harbour be enlarged, with the result that the
respondents' harbour installations have been
situated within the harbour limits since that time.
It is this Order in Council which is at the root of
the dispute. Since it was made, the respondents
have been unable to use their facilities without
their vessels entering the harbour and therefore
without having to pay the harbour dues payable
under By-law B-1 of the National Harbours Board
[SOR/69-111] by any vessel entering a harbour.
The dues the respondents had to pay from Novem-
ber 21, 1977 to November 9, 1979 amounted to
$128,033.21.
The respondents instituted proceedings against
Her Majesty and the National Harbours Board
asking that Order in Council P.C. 1977-2115 be
declared invalid and that the sum of $128,033.21
be reimbursed to them. The Trial Division granted
this application in part [[1980] 2 F.C. 3]. It
refused to declare the Order in Council invalid but
declared that By-law B-1 respecting the harbour
dues tariff did not apply to the respondents' tank
ers entering the harbour to use their harbour
installations and ordered the National Harbours
Board to refund the sum of $128,033.21.
Her Majesty and the National Harbours Board
appealed this judgment, which was also disputed
by the respondents, who maintained that the Trial
Judge should not have refused to declare Order in
Council P.C. 1977-2115 invalid.
This case thus raises two principal problems:
(1) Was the Trial Judge correct in finding that
Order in Council P.C. 1977-2115 altering the
boundaries of the harbour was valid?
(2) Was he correct in deciding that By-law B-I,
which requires vessels entering a harbour to pay
dues, was not applicable to the respondents'
vessels?
There is no question that the Governor in Coun
cil had the authority to alter the boundaries of the
Saint John Harbour. This authority was conferred
on him by subsection 7(2) of the National Har
bours Board Act, R.S.C. 1970, c. N-8, which reads
as follows:
7....
(2) The boundaries of the harbours of Halifax, Saint John,
Chicoutimi, Quebec, Trois-Rivières, Montreal and Vancouver
are as described in the schedule, or as may be determined from
time to time by order of the Governor in Council and any such
order shall be published in the Canada Gazette.
The respondents disputed the validity of Order in
Council P.C. 1977-2115 on the ground that it was
made for improper reasons and discriminated
against the respondents. They maintained that the
chief reason why the authorities enlarged the Saint
John Harbour was to force the respondents, who
had previously received financial assistance from
the government, it seems, to pay dues to the
National Harbours Board. This reason is foreign
to the aim which the National Harbours Board
should pursue, the respondents maintained, and
the Order should therefore be declared invalid.
The Trial Judge was correct in rejecting this
argument, in my view. Order in Council P.C.
1977-2115 altered the boundaries of the Saint
John Harbour and it was obviously made for this
purpose. In making this Order the Governor in
Council was therefore in fact exercising the au
thority conferred on him by subsection 7(2) of the
Act. The reasons the Governor in Council may
have had for exercising this authority, in addition
to being unknown to us, are of little importance,
since I do not see how they could affect the
validity of the Order. I would add that a desire to
increase the revenues of a harbour appears to me
to be a justifiable reason for extending the har
bour's boundaries.
With respect to the discriminatory nature of
Order in Council P.C. 1977-2115, it is simply a
result of the fact that the respondents had harbour
installations located in the area that was annexed
to the harbour. This does not mean that the Order
in Council is invalid.
There remains the question of the effect of
By-law B-1 respecting the harbour dues tariff.
This By-law of the National Harbours Board
requires "each vessel that enters or operates within
a harbour" to pay dues. Was the Trial Judge
correct in deciding that this By-law did not apply
to the respondents' vessels that entered the har
bour to use their harbour facilities? In order to
determine this question we must examine the rea
sons on which the Judge based his decision.
The Trial Judge based this conclusion first on
section 8 of the National Harbours Board Act,
which must be read in conjunction with the
preceding section:
7. (1) The Board, for the purpose of and as provided for in
this Act, has jurisdiction over the following harbours: Halifax,
Saint John, Chicoutimi, Quebec, Trois-Rivières, Montreal and
Vancouver, and likewise has administration, management and
control of
(a) all works and property that on the 1st day of October
1936 were administered, managed and controlled by any of
the Corporations;
(b) all other harbours and works and property of Canada
that the Governor in Council may transfer to the Board for
administration, management and control.
(2) The boundaries of the harbours of Halifax, Saint John,
Chicoutimi, Quebec, Trois-Rivières, Montreal and Vancouver
are as described in the schedule, or as may be determined from
time to time by order of the Governor in Council and any such
order shall be published in the Canada Gazette.
8. Unless otherwise specifically provided for in this Act,
nothing in section 7 shall be deemed to give the Board jurisdic
tion over or control of private property or rights within any of
the harbours under the jurisdiction of the Board.
I am not convinced by this first ground. Accord
ing to section 8, the Board may not exercise juris
diction over or control of "private property or
rights within" a harbour. In the present case the
"private property" in question consists of the
respondents' harbour installations. It does not
seem to me that the Board has exercised any
jurisdiction or control over these installations by
requiring that vessels travelling thereto pay the
same dues as all other vessels entering the Saint
John Harbour. The situation would be different, of
course, if the Board had claimed to regulate the
manner in which the respondents used their har-
hour installations or if the Board had regulated
access to these installations directly, by requiring
those using them to pay dues, for example. This
was not the situation here, however. The National
Harbours Board did not exercise any jurisdiction
or control over the respondents' property, it simply
regulated the right of movement in the Saint John
Harbour: this right is neither a private right nor
private property of the respondents'.
The second ground on which the Trial Judge
found By-law B-1 to be inapplicable to the
respondents' vessels was that the National Har
bours Board did not provide any service to these
vessels. The Board could therefore not require
them to pay any dues, according to the trial judg
ment. I am afraid I cannot share this view. It is
clear from reading the By-law in question that the
dues it imposes are "payable in respect of each
vessel that enters or operates within a harbour",
regardless of whether or not services have been
provided to the vessel. It seems to me, moreover,
that the imposition of such dues is authorized by
the early part of paragraph 14(1)(e) of the Act,
which reads as follows:
14. (1) The Governor in Council may make by-laws, not
inconsistent with the provisions of this Act, for the direction,
conduct and government of the Board and its employees, and
the administration, management and control of the several
harbours, works and property under its jurisdiction including
(e) the imposition and collection of tolls on vessels or aircraft
entering, using or leaving any of the harbours; on passengers;
on cargoes; on goods or cargoes of any kind brought into or
taken from any of the harbours or any property under the
administration of the Board, or landed, shipped, transhipped
or stored at any of the harbours or on any property under the
administration of the Board or moved across property under
the administration of the Board; for the use of any property
under the administration of the Board or for any service
performed by the Board; and the stipulation of the terms and
conditions (including any affecting the civil liability of the
Board in the event of negligence on the part of any officer or
employee of the Board) upon which such use may be made or
service performed;
' See: Attorney-General v. Conservators of the Thames
(1862) I H. & M. I; Lyon v. The Wardens, &c., of the
Fishmongers' Company (1876) 1 App. Cas. 662; Bell v. The
Corporation of Quebec (1879) 5 App. Cas. 84; W. H. Chaplin
& Co., Limited v. Mayor of the City of Westminster [1901] 2
Ch. 329.
For these reasons I would allow the appeal, set
aside the judgment at trial and dismiss the
respondents' action with costs both at trial and on
appeal.
* * *
LE DAIN J.: I concur.
* * *
HYDE D.J.: I agree with Mr. Justice Pratte.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.