Federal Court Decisions

Date: 20060714

Docket: T-1453-05

Citation: 2006 FC 881

OTTAWA, Ontario, July 14, 2006

PRESENT:      The Honourable Mr. Justice Teitelbaum

BETWEEN:

PRO-WEST TRANSPORT LTD. and

TEAM TRANSPORT SERVICES LTD.

Applicants

and

ATTORNEY GENERAL OF CANADAand

VANCOUVERPORT AUTHORITY

Respondents

REASONS FOR JUDGMENT AND JUDGMENT

[1]                This is an application for judicial review of a decision of the Governor in Council (the GIC), dated August 4, 2005, pursuant to section 47 of the Canada Transportation Act, R.S.C. 1996 c. 10 (the CTA), whereby the GIC issued an order amending an Order Authorizing Negotiations for the Settlement of the Dispute Causing the Extraordinary Disruption of the National Transportation System in Relation to Container Movements into and out of Certain Ports in British Columbia (the Amended OIC).

[2]                The applicants are in the business of transporting cargo containers arriving at and departing from the Port of Vancouver(the Port), which is operated by the respondent Vancouver Port Authority (the respondent VPA).

[3]                The applicants are two of a number of trucking companies which have entered into individual contracts with a number of truck drivers who own their own trucks (truckers) to transport cargo containers to and from the Port.

[4]                On or about June 24, 2005, a group of truckers withdrew their services from a number of trucking companies, including the applicants, and set up picket lines at the Port.

[5]                The purpose of the withdrawal of services was to pressure the trucking companies, including the applicants, to fix an industry-wide hauling rate with the truckers.

[6]                On June 30, 2005, the Government of Canada and the Government of British Columbia jointly appointed Mr. Vince Ready as a facilitator to assist in the resolution of the matter.

[7]                On July 29, 2005, Mr. Ready issued his report, which recommended that the parties enter into a Memorandum of Agreement (MOA). These recommendations were not accepted by all parties.

[8]                On July 29, 2005, the GIC issued Order in Council 2005-1356 (the Original OIC) pursuant to section 47 of the CTA.

[9]                On August 4, 2005, the GIC amended the Original OIC. The Amended OIC contained a direction to the VPA regarding the establishment of a licensing system for access to the Port. The Amended OIC required all trucking companies to execute an MOA as a condition to being granted a license. Without such a licence, the trucking companies, including the applicants, would be denied access to the Port.

[10]            On August 8, 2005, the applicants each signed an MOA and were therefore eligible to obtain a license allowing each of them access to the Port.

[11]            On August 11, 2005, the applicants submitted applications for and were granted the necessary licenses for access.

[12]            Before turning to consider the merits of the case, there is an important preliminary issue regarding which of the above decisions forms the proper subject of this judicial review.

[13]            The respondent VPA submits that this is not a judicial review of any administrative action by the VPA and draws the Court's attention to portions of a letter addressed to the Attorney General, dated September 21, 2005, wherein counsel for the applicants stated that their "Notice of Application, in essence, seeks only a single Order, an Order that the amended Order is invalid. The remainder of the relief flows from that declaration." By letter to the respondent VPA's counsel, dated September 23, 2005, counsel for the applicants stated that the grounds upon which he intends to rely are that "the Licence Agreement is void as a direct consequence of the fact that the Amended Order in Council is void."

[14]            The respondent VPA further submits that the only possible relief available to the applicants is a declaration that the Amended OIC is null and void and that the licensing system as well as the MOAs are null and void as a consequence. If the applicants were seeking judicial review of any decision of the VPA to implement a licensing system, which their counsel seems to confirm in his letters dated September 21 and 23, 2005 that they are not, the respondent VPA submits that they would have to have named as respondents all of the licensees pursuant to Rule 303 of the Federal Court Rules, 1998 (the Rules) which provides as follows:

[15]            The respondent Attorney General agrees that this application does not involve a review of the VPA's decision to implement a licensing system, but for different reasons.

[16]            The respondent Attorney General submits that the applicants appear to confuse the authority of the VPA to implement a licensing system and the authority of the GIC to issue the Amended OIC in that they present both decisions as falling under the CTA. The applicants all but ignore the possibility of authority for the VPA to license systems under the Canada Marine Act, S.C. 1998 c. 10 (CMA).

[17]            In my view, the question of whether or not the VPA had the authority to implement a licensing system is not essential for the purposes of this judicial review. The principal focus of this application is the GIC's jurisdiction in issuing the Amended OIC. In seeking to also challenge the VPA's jurisdiction, the applicants purport to contest the validity of a decision made pursuant to the Amended OIC. However, the validity of the Amended OIC does not depend on whether the VPA had the power to implement the licensing system, but rather on whether the Amended OIC was within the jurisdiction of the GIC, pursuant to section 47 of the CTA.

[18]            Moreover, under Rule 302 of the Rules, unless otherwise approved, an application for judicial review is limited to a single decision:

[19]            Therefore, given that applications for judicial review are limited to a single decision and further that the applicants' principal challenge is against the GIC's decision to issue the Amended OIC, the applicants' prayer for relief seeking declarations against the decision of the VPA to issue a licensing system are outside the scope of this application and not properly before this Court.

[20]            Section 47 of the CTA provides as follows:

[21]            In Thorne's Hardware Ltd. v. Canada, [1983] 1 S.C.R. 106, the applicants challenged the validity of an order in council. Justice Dickson, writing for the Court, made the following comments on the limited grounds for review of an order in council:

The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond judicial review: Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at p. 748. I have no doubt as to the right of the courts to act in the event that statutorily prescribed conditions have not been met and where there is therefore fatal jurisdictional defect. Law and jurisdiction are within the ambit of judicial control and the courts are entitled to see that statutory procedures have been properly complied with: R. v. National Fish Co., [1931] Ex. C.R. 75; Minister of Health v. The King (on the Prosecution of Yaffe), [1931] A.C. 494 at p. 533. Decisions made by the Governor in Council in matters of public convenience and general policy are final and not reviewable in legal proceedings. Although, as I have indicated, the possibility of striking down an order in council on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action. This is not such a case.

[22]            Accordingly, unless I should find that the GIC acted ultra vires or outside the jurisdictional limits of its statutory authority under section 47, in the absence of compelling grounds, its decision to issue the Amended OIC will not be reviewable. None of the parties seem to dispute this.

[23]            While each party offers its own phrasing of the question, all agree that the sole issue before this Court is to determine whether the GIC exceeded its jurisdiction, under section 47 of the CTA, in enacting the Amended OIC.

[24]            Before turning to the analysis, I must first determine the standard of review using the pragmatic and functional approach, which involves a consideration of four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purpose of the legislation as a whole and the provision in particular; and (4) the nature of the question: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.

[25]            The Supreme Court of Canada in Voice Construction Ltd. v. Construction and General Workers' Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609 cited with approval the following comments made by Justice Bastarache in Pushpanathan, above, at paragraph 28:

Although the language and approach of the "preliminary", "collateral" or "jurisdictional" question has been replaced by this pragmatic and functional approach, the focus of the inquiry is still on the particular, individual provision being invoked and interpreted by the tribunal. Some provisions within the same Act may require greater curial deference than others, depending on the [four] factors which will be described in more detail below. To this extent, it is still appropriate and helpful to speak of "jurisdictional questions" which must be answered correctly by the tribunal in order to be acting intra vires. But it should be understood that a question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis. In other words, "jurisdictional error" is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown. [Emphasis added.]

[26]            Although all parties agree that the issues raised in the present case are jurisdictional questions and therefore that the standard of review is correctness, it is evident from recent Supreme Court of Canada jurisprudence that the labelling of a question as "jurisdictional" no longer provides a "shortcut past the components of the pragmatic and functional approach" to simply conclude that the standard is that of correctness: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 21. Rather, the standard of review for administrative decisions must in every case be ascertained through the application of the pragmatic and functional approach.

[27]            I am not aware of any prior pragmatic and functional analysis that has been conducted for decisions made by the GIC under section 47 of the CTA. Ordinarily, CTA appeals arise as a result of section 41 which provides for appeals to the Federal Court of Appeal on a question of law or a question of jurisdiction of decisions made by the Canadian Transportation Agency. In the present case, as previously stated, the Court is dealing with judicial review of a decision of the GIC to issue an order in council under section 47 of the CTA.

[28]            Turning now to the first factor, the existence or non-existence of a privative clause, decisions made pursuant to section 47 are not protected by a privative clause. On the other hand, unlike section 41 decisions, section 47 decisions cannot be appealed. This indicates a mid to higher level of deference.

[29]            The second factor, relative expertise, is closely related to the fourth factor, the nature of the problem (Pushpanathan, above, at paras. 32-24). The issues arising in this case are not technical. The question before the Court is whether the GIC has the authority under the statute to make the type of order that was made. As the nature of the problem is one of jurisdiction and the statutory interpretation of section 47, it cannot be said that the expertise of the Attorney General is higher than that of the Courts. This calls for a lower standard of deference: Canadian Pacific Railway Co. v. Canada(Canadian Transportation Agency), 2003 FCA 271, [2003] 4 F.C. 558, at para. 18.

[30]            Turning now to the third factor, the purpose of the legislation is to implement certain regulations involving national transportation in order to meet the objectives as specifically enumerated in section 5 of the CTA:

[31]            As for the purpose of the particular provision, in my view, section 47 involves polycentric considerations involving the balancing of various interests and taking any steps in order to "stabilize the national transportation system." Subparagraph 47(1)(a) contemplates the "effective continued operation of the national transportation system" and subparagraph (b) speaks of "the interests of users and operators of the national transportation system." This is clearly not a matter of a dispute between two parties. Indeed, I believe it would be quite a rare event for the GIC to ever issue a non-polycentric, individual rights-based order. This factor points to a more deferential standard of review: Pushpanathan, above, at para. 36.

[32]            Finally, as for the nature of the question, as previously stated, the question before the Court is one of jurisdiction. The question being one of jurisdiction, no deference is owed to the decision maker. In this sense, the Court must ensure that the tribunal exercised its jurisdiction correctly. Administrative tribunals are creatures of statute and must be correct in assessing the scope of their mandate: Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, [2004] 1 S.C.R. 727 at para. 18.

[33]            Taking these factors together, I find that the standard is one of correctness.

Powers of the VPA to implement licensing systems

[34]            In the event that I am wrong on the preliminary issue, and the claims against the VPA are indeed properly before this Court, which, as I have said I do not believe to be so, the following is my analysis of those claims. I also note that it is important to consider this issue in the event that I find that the GIC acted outside its jurisdiction in issuing the Amended OIC as the respondents submit that the VPA has the power to impose the same licensing system absent an order in council by virtue of the CMA and its Letters Patent. Therefore, should I rule that the Amended OIC is invalid, the respondents submit that this ruling would not have the effect of rendering the licence agreements and the MOAs null and void.

[35]            The applicants submit that the Amended OIC purports to authorize the VPA to impose a licensing system not authorized under its constating statute. The applicants submit that there is no specific grant of authority in the CMA empowering the VPA to implement a licensing system or to set fair wages. When Parliament intends to grant the authority to set "fair wages" they do so specifically. Neither the statutory language nor the purpose of the CMA, or of the VPA, provides any basis for concluding that Parliament intended the VPA to have such authority.

[36]            The applicants also note that certain grants of authority must be clearly stated in the tribunal's constating statute and that powers which limit or remove an individual's common law rights must be expressly stated. In this regard, the applicants cite the cases of Morguard Properties Ltd. et al. v. City of Winnipeg, [1983] 2 S.C.R. 493 at 13; Nanaimo(City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342; and R. v. Sharma, [1993] 1 S.C.R. 650.

[37]            The respondents, on the other hand, submit that this Court has already considered the scope of the VPA's power, and concluded that the VPA does indeed have the power to implement a licensing system. In PRTI Transport Inc. v. Vancouver Port Authority (1999), 179 F.T.R. 310 (T.D.), PRTI applied for an injunction to restrain the VPA from refusing its truckers access to its marine terminals. The injunction application arose as a result of a withdrawal of services which restricted access to and immobilized trucking activities at the Port. As a result, the VPA implemented a licensing system which included a requirement that the trucking companies pay its drivers a "fare return" for work performed with the Port. PRTI submitted that the VPA's responsibility to run the Port did not include the power to regulate wage rates between carriers and their contractors. The application was dismissed. Justice Paul Rouleau held that by virtue of section 28 of the CMA and the VPA's Letters Patent, the VPA did indeed have the authority to license those who wanted access to the Port. At paragraph 30, he concluded as follows:

[...] The port authority certainly has the obligation to see to the proper handling of cargo at its port as well as its continuing and ongoing business operation. I am satisfied that they have the power to licence those who are to have access to the port; the fact that they have suggested that the truckers be paid a fair wage for waiting time is only incidental to the overall purpose of regulating trucking and the movement of cargo at its port.

[38]            The respondent VPA submits that this conclusion is justified on the basis of the plain language of its governing legislation, which gives it broad and general powers to manage and enter into contracts respecting access to and use of the VPA lands. Section 4 of the CMA states the objectives of the CMA as follows:

[39]            Additionally, subsection 28(1) of the CMA, titled "Capacity and Powers", provides that a port authority is incorporated for the purpose of operating the port in respect of which its letters patent are issued and has the powers of a natural person. Subsection 45(3), titled "Leases and Licenses", states that a "port authority may, for the purpose of operating the port, lease or license any federal real property or federal immovable that it manages, subject to the limits in the port authority's letters patent on its authority to contract as agent for Her Majesty in right of Canada....".

[40]            Further, and most importantly, section 46(1)(a) of the CMA provides that while the VPA may not dispose of any federal real property that it manages, it may grant licences for access.

[41]            Section 7.1 of the Letters Patent states that the VPA may, inter alia, develop, apply enforce and amend rules, orders, bylaws, practices or procedures and issue and administer authorizations respecting use, occupancy or operation of the port and enforcement of regulations or making of regulations pursuant to section 63(2) of the CMA. Section 7.1 further gives the VPA the authority to grant road allowances or easements, rights of way or licences for utilities, service, or access over VPA Lands and provide services or carry out activities within the port to or for users in connection with transport services within the port and access to or from the port and its facilities.

[42]            The cases the applicants seek to rely on for the proposition that powers which limit or remove an individual's common law rights must be expressly stated are entirely distinguishable on the basis that the VPA in this case is not limiting or removing the applicants' rights as there is no right of access to VPA lands. The VPA is licensing access to the VPA lands by setting conditions for access. Such access is a privilege, not a right at common law.

[43]            To conclude, as was similarly held by my colleague Justice Rouleau in PRTI Transport, above, the VPA, like many other public authorities, can exercise its authority to grant licences containing terms and conditions relating to the use of and access to its property. In doing so, it does not exceed its jurisdiction. While the particular licensing system in this case was implemented because the GIC ordered it in the Amended OIC, the VPA's jurisdiction to establish the licensing system and incorporate the MOA into it are independent of the direction in the Amended OIC (although I agree with the respondent Attorney General that the Amended OIC provides the VPA with additional protection under subsection 47(7) of the CTA vis-à-vis liability under the Competition Act). Therefore, even in the absence of such an Order, the VPA would have the general power to issue such licences respecting use of and access to the VPA lands, including a condition that the applicants sign the MOA.

GIC's Authority to issue the Amended OIC

[44]            Under the authority of section 47 of the CTA, the GIC issued the Amended OIC, article 3.1 of which provides as follows:

APPLICATION TO PORT OF VANCOUVER

3.1 (1) The Vancouver Port Authority is directed, in respect of the territory under its jurisdiction and control,

(a) to establish a licensing system giving access to the Port of Vancouver to trucks and other road transportation equipment for the delivery, pick-up or movement of containers into and out of that port;

(b) to include as two of the conditions of a licence issued under paragraph (a) that the applicant

(i) be a signatory to the Memorandum of Agreement between Trucking Companies (Owners/Brokers) and Vancouver Container Truckers' Association dated July 29, 2005 and be in full compliance with that agreement, and

(ii) accepts the arbitration process set out in section 10 of the Memorandum of Agreement for the purpose of reaching a final and binding resolution of any dispute relating to the interpretation or application of the licence; and

                        [...]

[45]            The Amended OIC authorizes the VPA to require the applicants to execute the MOA as a condition precedent to granting the license. The MOA has a term of two years.

[46]            The applicants submit that the Amended OIC is void on the basis that, in issuing the Amended OIC in terms that purport to have an effect beyond the authorized 90-day period in the order, the GIC exceeded its grant of authority in section 47 of the CTA.

[47]            According to the applicants, the licensing system and the requirement to enter into the MOA can only be sustained beyond the Amended OIC's 90-day period of authorization by express Acts of Parliament increasing the grant of authority to the VPA and creating an exemption to the Competition Act.

[48]            The applicants submit, accordingly, that the licensing system is void on the basis that it was implemented in reliance on the Amended OIC, which they contend is void and of no force and effect.

[49]            The respondents submit that a plain and literal reading of both the Amended OIC and section 47 of the CTA make it clear that this is not the case.

[50]            The respondents submit that the licensing system and the requirement to enter into the MOA can be sustained beyond the Amended OIC's 90-day period of authorization without an express Act of Parliament. According to the respondents, the 90-day period set out in subsection (3) only applies to the period of time that the parties bound by the OIC have to "take any steps ... that the Governor in Council considers essential to stabilize the national transportation system including the imposition of capacity and pricing restraints." The 90-day period does not apply to the specific requirements of the steps taken pursuant to that order.

[51]            The respondents further submit that subsection 47(7) of the CTA confirms that anything done under the authority of the OIC prevails over the Competition Act. It does not limit that protection for the duration of the order set out under subsection 47(3). The absence of a time period in subsection 47(7) bolsters this argument. Parliament intentionally separated subsection 47(7), which affords Competition Act protection, from subsection 47(3), which imposes the 90­-day time period. If Parliament had intended the 90-day time period to apply to the Competition Act protection, then Parliament would have either cross-referenced the subsections in the wording of the subsections themselves (as Parliament frequently does under the CTA) or would have combined the two subsections under one subsection. Parliament did neither.

[52]            Finally, the respondents submit that if the parties bound by the Amended OIC were not permitted to implement steps or reach agreements lasting longer than 90 days, then the purpose of section 47 would be defeated. According to subsection 47(1), orders in council are made when there is "an extraordinary disruption to the effective continued operation of the national transportation system that either "exists" or is "imminent". If the 90-day period applied to any agreements made pursuant to the order, then the "extraordinary disruption" would remain imminent because the disruption would arise every 90 days after the expiry of the agreements.

[53]            I agree with the respondents. The purpose of subsection 47(1) is to "stabilize the national transportation system", not merely delay, or temporarily suspend, actual or imminent threats to the national transportation system. Stability could hardly be achieved if the orders could not facilitate a more long-standing solution. Moreover, if an agreement made pursuant to a section 47 order required more than 90 days to be effective, and the 90-day period applied to the agreement, then a severe administrative inefficiency would result because the GIC would have to repeatedly re-issue the same order every 90 days until the objective of the agreement was achieved. I do not view this as having been the intention of Parliament in enacting section 47. In my opinion, the 90-day period applies to the period of time that parties bound by an order in council have to take steps under it, and not to the agreements that result from such actions.

[54]            I draw support for this conclusion from the Canadian Airlines cases. To delve into a detailed analysis of the complex events that gave rise to the high profile litigation is unnecessary for the purposes of this application. In essence, Canadian Airlines, in a state of financial difficulty, was on the verge of acquisition by Air Canada, which gave rise to various corporate issues which were heard in a number of courts across the country. In considering those issues, the courts noted the section 47 order in council issued with respect to the airline industry.

[55]            In Canadian Airlines Corp. (Re), 2000 ABQB 442, [2000] 10 W.W.R. 269, the Alberta Court of Queen's Bench noted a section 47 order in council made to "facilitate the restructuring of the airline industry" by "relaxing certain rules under the Competition Act." The Court was asked to approve a restructuring arrangement filed under the Companies Creditors Arrangement Act to effectively amalgamate Air Canada and Canadian Airlines to resolve Canadian Airlines' financial insolvency. The Court acknowledged that the arrangement was the result of a process that, in part, involved conduct authorized by a section 47 order in council. In particular, the Court noted that the Federal Government issued the Order to provide Canadian Airlines with an opportunity "to approach other entities to see if a permanent solution could be found" (at para. 177).

[56]            In Airline Industry Revitalization Co. v. Air Canada (1999), 45 O.R. (3d) 370 (Ont. Sup. Ct. J.), the Ontario Superior Court of Justice described the section 47 order in council issued by cabinet as being "for the purpose of creating a special process to facilitate a restructuring of the Canadian airline industry." At paragraph 9, the Court wrote as follows:

[...] The thrust of the s. 47 order is to authorize Canadian, Air Canada, and others (including representatives of the Crown) to negotiate and enter into conditional agreements during the 90-day period without the restraints that would otherwise be imposed on such negotiations by the Competition Act, R.S.C. 1985, c. C-34 and with a view to developing proposals respecting the ownership, reorganization, restructuring or financing of any or all of Canada's major airlines. [...]

[57]            Similarly, in Air Canadav. Airline Industry Revitalization Co., [1999] Q.J. No. 4880 (S.C.), the Quebec Superior Court, Civil Division also described the order in council at paragraphs 4-5:

The Section 47 Order lifted, for a period of 90 days, the restraints of the Competition Act in order to authorize anyone who wishes to make a proposal respecting the ownership, reorganization, restructuring or financing of any major air carrier, to:

. "develop, assess and discuss the proposal and its implications, including implications on the competition in the market served by the designated company, and

. negotiate and enter into a conditional agreement ..."

The Section 47 Order thus enabled Onex, on August 23rd, though a corporate vehicle, AirCo, to enter into a series of agreements with Canadian Airlines and one of its shareholders, American Airlines.

[58]            In each of these cases, the Court describes the purpose of the section 47 order in council as facilitating a restructuring of the Canadian airline industry. While these cases do not specifically refer to the permanence or duration of the restructuring agreement, it is clear that their duration was not limited to 90 days as the restructuring would be impossible if the agreements entered into expired within 90 days.

[59]            Returning to the case at bar, it is only logical that the impact of the Amended OIC - that is, the licensing agreements and the MOAs- will be felt beyond the duration of the Amended OIC. Such ongoing impact of a section 47 order is not only within the jurisdiction of the section, but, in my view, expected by it. Although the order cannot extend beyond 90 days, any initiative or action taken pursuant to it can.

[60]            Such ongoing impact of temporary orders is also mandated under the Interpretation Act, R.S. 1985, c. I-21 (the IA). The OIC is an "enactment" (see section 2 "enactment" defined to include "regulation" and "regulation" defined to include orders in council), and the expiration of an enactment has the same effect as if it had been repealed (see section 2(2) which states: "For the purposes of this Act, an enactment that has been replaced is repealed and an enactment that has expired, lapsed or otherwise ceased to have effect is deemed to have been repealed"). The IA defines the relevant impact of such repeal in subsections 43(b) and (c) which state:

[61]            Pursuant to section 43(b) of the IA, the licensing system requiring that the applicants enter into the licenses and the MOAs during the duration of the Amended OIC remains valid legal authority for such acts even after the expiry of the order.

[62]            The rights, privileges, obligations, and liabilities obtained by the VPA and others as a result of entering into the licences and the MOA are maintained as a result of subsection 43(c) of the IA, even after the order expires. As a result, the existing licences and executed MOAs remain of full legal force and effect.

[63]            Finally, article 4 of the Amended OIC clearly states that the order expires 90 days after coming into force, as required by section 47(3) of the CTA. As a result, there is no excess of jurisdiction on the part of the GIC. I would also note that the Amended OIC does not itself require the licensing system to be in effect for more than the term of the order. It was the VPA who ultimately set the licences for a two-year period, a decision which cannot impact the validity of the Amended OIC.

JUDGMENT

            For the foregoing reasons, this application for judicial review is dismissed with costs in favour of the Attorney General of Canada and the Vancouver Port Authority.

"Max M. Teitelbaum"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1453-05

STYLE OF CAUSE:                           PRO-WEST TRANSPORT LTD. and TEAM TRANSPORT SERVICES LTD. v. ATTORNEY GENERAL OF CANADA and VANCOUVER PORT AUTHORITY

PLACE OF HEARING:                     Vancouver, British Columbia

DATE OF HEARING:                       June 27, 2006

REASONS FOR JUDGMENT:        TEITELBAUM J.

DATED:                                              July 14, 2006

APPEARANCES:

Mr. Donald J. Jordan, Q.C.	FOR THE APPLICANTS
Mr. Lorne Lachance Ms. Cindy Mah Mr. Howard L.A. Ehrlich Ms. Taryn Mackie	FOR THE RESPONDENT Attorney General of Canada FOR THE RESPONDENT Vancouver Port Authority

SOLICITORS OF RECORD:

Taylor, Jordan, Chafetz Barristers and Solicitors	FOR THE APPLICANTS
John H. Sims, Q.C. Deputy Attorney General of Canada Bull, Housser & Tupper, LLP Barristers and Solicitors	FOR THE RESPONDENT Attorney General of Canada FOR THE RESPONDENT Vancouver Port Authority