• ATL Trucking Ltd. v Vancouver Fraser Port Authority, 2015 FC 420 ("ATL") and Goodrich Transport Ltd. v Vancouver Fraser Port Authority, 2015 FC 520 ("Goodrich")
  • January 12, 2016 | Authors: Dionysios Rossi; Graham Walker
  • Law Firm: Borden Ladner Gervais LLP - Vancouver Office
  • Goodrich, and the interlocutory decision in ATL, arose from a decision by the Vancouver Fraser Port Authority, also known as Port Metro Vancouver ("PMV"). PMV is a Canadian port authority established and governed by the provisions of the Canada Marine Act, SC 1998, c 10 and Letters Patent dated December 6, 2007. PMV operates and manages various port facilities in and around Vancouver, British Columbia, and is Canada's largest port. PMV had experienced a long history of labour disputes connected to the drayage sector and work stoppages in 1999, 2005, and 2014 were brought on by poor remuneration, increased operating costs, undercutting of wages, and operational inefficiencies. The work stoppages caused significant delays in container movement and significant economic losses.

    The applicants were 28 businesses engaged in drayage, specifically the transportation of shipping containers by truck in and around the Lower Mainland of British Columbia. A great deal of their business involved moving shipping containers to and from certain container terminals managed by PMV. This commercial relationship was not without problems and a work stoppage by the truck drivers occurred in 2014. The Minister of Transport commenced an independent review that concluded, among other things, that there was an oversupply of trucks authorized to access the port under PMV's Truck Licensing System ("TLS"). Following this review, PMV publicly announced its intention to reform the TLS, including its intention to reduce the number of licensed trucks. Under this new scheme, PMV gave notice that all existing authorizations to enter the port were terminated and interim authorizations would expire on January 31, 2015. This had the effect of denying access to PMV facilities to any truckers who were unsuccessful in the new TLS process.

    In early December 2014, PMV published a handbook providing instructions on how to submit an application under the new TLS, outlining the mandatory and discretionary criteria that would be used to assess the applications, and indicating that the anticipated number of applications would likely exceed the number of available licenses. The application process was to run from December 10, 2014 to January 16, 2015, and the applications were processed in batches. During this period, PMV issued several notices indicating that a certain number of applications had been approved and that the applications would continue to be processed until the end of January 2015 or when the target number of truck tags had been reached. Unbeknownst to the applicants, PMV was operating on a "rolling approvals" basis and a more onerous scoring benchmark was being used for the assessment of the later batches of applications.

    The application process was concluded and the applicants each received a form letter from PMV denying their applications. This was the decision for which the applicants sought judicial review in the Federal Court.

    In the Goodrich applications for judicial review, the applicants argued that the impugned decision was made without lawful authority because PMV fettered its discretion by adopting an inflexible evaluation model and that PMV's process was procedurally unfair. PMV accepted that duty of fairness applied, but argued that the content of the duty fell on the lower range of participation given the largely contractual nature of the parties' relationship (citing Mavi v Canada, 2011 SCC 30).

    Meanwhile, PMV brought a motion arguing that the Federal Court lacked jurisdiction to hear the Goodrich judicial review applications because it was not acting as a "federal board, commission or tribunal" within the meaning of the Federal Courts Act and its decision was of a private and commercial nature. In the alternative, PMV submitted that if the Court did in fact have jurisdiction, the applications ought to be dismissed because the applicants had failed to commence the applications within the 30-day time period provided in the Federal Courts Act and had not sought an extension of the time.

    PMV's motion was considered by Justice Zinn in the interlocutory ATL decision. He concluded that PMV's decisions regarding the applicants' licences, in effect, denied the applicants access to PMV facilities in order to carry on their commercial activities. He held that this activity was one of the main functions of the port and that, in making this decision, PMV was exercising its statutory authority pursuant to paragraph 28(2) (a) of the Canada Marine Act, SC 1998, c 10 to engage in port activities related to shipping, transportation of goods, handling of goods, and storage of goods. Zinn J. confirmed that there was a reviewable decision within the meaning of the Federal Courts Act, given that the applications had been assessed and PMV had reached a decision to deny the applicants' applications. Therefore, the case proceeded to a judicial review hearing before Justice Barnes (Goodrich).

    In Goodrich, Barnes J. held that PMV had a duty of fairness to the applicants in relation to the evaluation of the licence applications. While there was no legislative limitation over PMV's procedure in considering the applications, Barnes J. noted that the decisions were of considerable economic importance to the applicants, PMV had promised a "consistent, fair and transparent process" and the applicants had no right to a reconsideration or appeal. In such circumstances, the applicants were entitled to a fair, impartial and open process that afforded them meaningful rights of participation. Citing Fisher v Canada, 2012 FC 720, Barnes J. held that effective notice is fundamental to procedural fairness and that, despite PMV's initial disclosure regarding the criteria, "fairness demanded the disclosure of the more onerous scoring system that applied to later applications." He concluded that PMV's decision to reach the benchmark was likely done on an ad hoc basis with little, if any, regard for fairness and that
    this process had unfair results.

    Barnes J. went on to consider whether PMV had fettered its discretion. He concluded that, "in the absence of statutory confinement, a decision-maker does not act unreasonably or fetter its discretion by developing and applying firm rules to the evaluation of license applications" as long as it acts fairly and the rules it adopts are relevant to the exercise of its proper discretion. On this basis, he concluded that, while PMV's assessment scheme lacked nuance, it was not unreasonable or unlawful for PMV to adopt the criteria set out in the handbook or to assign scores solely on the basis of binary choices.

    The decisions made by PMV in denying licences to the applicants were set aside. Further, PMV was ordered to reconsider the applications "on the merits and in accordance with the most favourable approval benchmark applied to any of the successful licensing applications" and to issue licences to "any qualified Applicant whose application meets that benchmark for approval."