CORAM: DÉCARY J.A.
LINDEN J.A.
SEXTON J.A.
BETWEEN:
PRO-WEST TRANSPORT LTD. and
TEAM TRANSPORT SERVICES LTD.
and
ATTORNEY GENERAL OF CANADA and
VANCOUVER PORT AUTHORITY
Heard at Vancouver, British Columbia, on May 28, 2007.
Judgment delivered from the Bench at Vancouver, British Columbia, on May 28, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Docket: A-364-06
Citation: 2007 FCA 206
CORAM: DÉCARY J.A.
LINDEN J.A.
SEXTON J.A.
BETWEEN:
PRO-WEST TRANSPORT LTD. and
TEAM TRANSPORT SERVICES LTD.
Appellants
and
ATTORNEY GENERAL OF CANADA and
VANCOUVER PORT AUTHORITY
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on May 28, 2007)
[1] The Appellants, two trucking companies, which transport cargo containers on premises operated by the Vancouver Port Authority (VPA), appeal from a decision of Teitelbaum J. in which he dismissed an application for Judicial Review by the Appellants who sought to quash an Order in Council issued by the Governor in Council.
[2] The Order in Council directed the VPA to establish a licensing system under which trucking companies were required to enter into a Memorandum of Agreement which, inter alia, set the hauling rates to be paid to owner-operators of trucks working for the Appellants. The Order in Council was issued in order to resolve a dispute in which the owner-operators withdrew their services to pressure the trucking Companies to fix hauling rates more suitable to the owner-operators.
[3] Pursuant to the Order in Council, the VPA entered into a Memorandum of Agreement with the Appellants and accordingly licenses were issued to the Appellants and transportation of the containers was resumed. The Memorandum of Agreement was for a term of two years commencing in August 2005.
[4] In November 2006, a new licensing system was established for the Port by regulations enacted pursuant to Section 62(1) of the Canada Marine Act S.C. 1998, c.10. Consequently, the VPA issued a press release on December 1, 2006 stating that the existing licenses were valid only until January 15, 2007. After that date trucking companies seeking access to the Port were required to obtain new licenses pursuant to the new Regulations.
[5] As a consequence, the Respondents submit that because the licensing system at issue in this appeal has been replaced by the new system mandated by the Regulations, the appeal relating to the validity of the Order in Council and the actions of the VPA in implementing the Order in Council has become moot.
[6] We agree. The Supreme Court of Canada in Borowski v. Canada [1989] 1 S.C.R. 342 established a two step test for mootness. First the Court must ask whether a live controversy exists. If not, then the Court must consider whether it should nevertheless exercise its discretion to hear the case. The criteria to be considered in the exercise of this discretion are:
i) the issue
must arise in an adversarial context;
ii) Judicial economy must be considered;
iii) The Court must demonstrate an awareness of its proper lawmaking function,
being sensitive to its role as the adjudicative branch in our political
framework.
[7] In the present case, there is no live controversy. The licensing system and Order in Council under attack no longer exist. The relief sought by the Appellants includes declaring that the Order in Council and licenses granted under the old licensing system are void. Such declarations, if granted, would have no effect upon the parties’ rights now as they are governed by the new licensing system.
[8] In considering the exercise of discretion, although the case does exist in an adversarial context, the second and third factors militate against the exercise of discretion. The issues raised in the appeal are not brief nor are they recurring, which are considerations taken into account in Borowski. Furthermore there appears to be no pressing need to resolve questions relating to the powers of the VPA or the Governor in Council relating to access to the port. More importantly, the central issue in this case is whether the Governor in Council had the authority to issue the Order in Council. By passing judgment on this issue, the Court would be intruding into the political domain which does not appear to be necessary at the present time. In Thorne's Hardware Ltd. v. The. Queen, [1983] 1 S.C.R. 106, Dickson J. said it would take an egregious case to warrant the Court striking down an Order in Council. The present case does not qualify.
[9] At the hearing of this appeal, counsel for the Appellants argued that his clients require a finding of the Court relating to the Order in Council so as to enable them to sue the Respondents for damages relating to the Order in Council. However, counsel did not direct the Court to any evidence in the material that his clients have suffered damages or to any evidence that they intend to advance such a claim. Furthermore, counsel for the Appellants made no attack on the motives of the Respondents in imposing the old licensing system.
[10] The Appeal should therefore be dismissed as being moot. As the facts establishing mootness occurred after the launching of the appeal, there should be no order as to costs.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-364-06
STYLE OF CAUSE: PRO-WEST TRANSPORT LTD. ET AL v. AGC ET AL.
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR JUDGMENT BY: DÉCARY J.A.
LINDEN J.A.
SEXTON J.A.
DELIVERED FROM THE BENCH BY: SEXTON J.A.
DATED: May 28, 2007
APPEARANCES:
Donald J.
Jordan Q.C. FOR
THE APPELLANTS
Judith Bowers
Q.C. FOR THE
RESPONDENTS
Lorne Lachance
Howard Ehrlich
Taryn Mackie
SOLICITORS OF RECORD:
|
Taylor Jordan Chafetz Barristers & Solicitors Vancouver, B.C. |
FOR THE APPELLANTS |
|
John H. Sims, Q.C. Deputy Attorney General of Canada
Bull, Housser
& Tupper LLP |
|