Letter Decision No. LET-W-98-2000

April 1, 2000

Application by the Vancouver Port Authority for an extension of 30 days from the date of receipt of the decision of the Federal Court Trial Division to answer the application by Westshore Terminals Limited

File No.: 
W 9255/V1-1

The Canadian Transportation Agency (the Agency) has considered the above application, the comments of Westshore Terminals Limited (Westshore) dated March 29, 2000, and the reply of the Vancouver Port Authority (VPA) dated April 3, 2000. The Agency finds that it must for compelling reasons continue consideration of Westshore's application, notwithstanding that the decision of the Federal Court Trial Division (the Federal Court) in the hearing of the motion of March 1, 2000, is pending. Accordingly, the Agency denies the VPA's application for extension. The Agency stresses in particular that the context in which the issue of whether rental payments are fees for the purposes of section 49 of theCanada Marine Act (the CMA) is referred to the Federal Court is quite different from the context of the issue before the Agency. Furthermore, it is not clear that the final decision delivered by the Federal Court will in fact deal with this issue.

The legislative mandate conferred on the Agency by section 52 of the CMA specifically provides that it may consider complaints that there is unjust discrimination in a fee fixed under subsection 49(1). In Decision No. 73-W-2000 of February 4, 2000, in the matter of an application by Halterm Limited pursuant to section 52 of the CMA, the Agency found that rent payments were fees for the purposes of subsection 49(1) of the CMA. Accordingly, the Agency has jurisdiction to deal with applications respecting rental fees charged which are filed under this section.

Under subsection 52(1) of the CMA, the Agency is to consider a complaint "without delay". Further, subsection 29(1) of the Canada Transportation Act (the Act) stipulates that the Agency "shall make its decision [...] as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received," unless the parties agree to an extension.

Section 30 of the Act specifies that the fact that a suit, prosecution or proceeding involving a question of fact is pending in any court does not deprive the Agency of jurisdiction to hear and determine the same question of fact.

In sum, whereas the Agency is specifically empowered to deal with complaints of unjust discrimination in fees charged under subsection 49(1) of the CMA, and considering the abovenoted Decision No. 73-W-2000, the Agency intends for the moment to fulfil its statutory obligations and continue consideration of Westshore's application.

The Agency recognizes that the VPA might need more time to answer Westshore's application, considering the time required for this motion. Consequently, the Agency hereby grants the VPA a 10-day extension to submit its answer, or until April 25, 2000. Westshore will then have the same length of time from the date of receipt of VPA's answer to reply.

The Agency is of the opinion that holding a public hearing in Vancouver is necessary for consideration of Westshore's application. The date thereof will be announced following consultations with the parties.

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