Decision No. 48-W-2018

SUMMARY

Application

[1] On June 4, 2018, DTI applied for a licence to use the “M/V HHL NEW YORK”, a heavy lift multi‑purpose dry cargo ship registered in Antigua and Barbuda, to transport containers and heavy machinery such as excavators, loaders and mining equipment, in one voyage, from Bécancour, Quebec to Rankin Inlet, Nunavut. The activity date was from June 19, 2018 to July 19, 2018 or around that date.

Notice, offer and withdrawal of application

[2] On June 5, 2018, Canadian Transportation Agency (Agency) staff gave notice of the application to the Canadian marine industry. Pursuant to the notice, operators of Canadian‑registered ships who intended to file with the Agency an objection to the application or to offer a ship to perform the activity described in the application were required to do so by June 7, 2018.

[3] On June 7, 2018, NEAS Group (NEAS) filed with the Agency an objection to DTI’s coasting trade licence application for the use of the “M/V HHL NEW YORK” and offered the Canadian‑registered “MV DOLFIJNGRACHT”.

[4] In its offer, NEAS encourages the Agency to exercise its authority to fix any terms and conditions, including costs, should the application be withdrawn before a determination is made. NEAS maintains that this will “discourage further similar frivolous applications that waste Agency’s and NEAS’ time and resources”.

[5] On June 8, 2018, DTI advised the Agency that it was withdrawing its application, stating that it has found another suitable Canadian-registered ship to perform the activity.

LEGISLATIVE CONTEXT

[6] Pursuant to subsection 25.1(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended, the Agency has all the powers that the Federal Court has to award costs in any proceeding before it. Subsection 400(1) of the Federal Courts Rules, SOR/98-106, establishes that the Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.

[7] Section 15 of Appendix A of the Agency’s Guidelines Respecting Coasting Trade Licence Applications (Guidelines) also provides that on receipt of a notice of withdrawal or discontinuance, the Agency may fix any terms and conditions, including costs, to the withdrawal or discontinuance that it considers appropriate.

Should the Agency fix terms or conditions, including costs, to the withdrawal of DTI’s application?

[8] NEAS has requested that the Agency exercise its authority to fix terms and conditions, including costs, in relation to the withdrawal of DTI’s coasting trade licence application.

[9] The Agency has complete discretion regarding the awarding or denial of costs, and each application is decided on its own merits. As a general rule, costs are not awarded as a matter of course, and the Agency’s practice has been to award these only in special or exceptional circumstances. In making its determination in a given case, the Agency considers a combination of factors such as the nature of the application, the length and complexity of the proceeding, whether parties have acted efficiently and in good faith, or if a party has incurred extraordinary costs to prepare and defend its application. The Agency finds that this case does not meet those special or exceptional circumstances. Consequently, the Agency will not award costs in this matter.

[10] However, the Agency reminds DTI that, as provided in the Agency’s Guidelines, the onus is on applicants to communicate with operators of Canadian-registered ships before they file an application, to avoid the filing and processing of an unnecessary application should there be a suitable Canadian-registered ship available. In this case, the Agency notes that DTI contacted one such operator on June 1, 2018 and was advised that same day that the Canadian-registered ships were not available. At or around the same time, DTI should have also communicated with NEAS on June 1 instead of waiting to send an e-mail to NEAS approximately two hours before DTI filed a fast track application with the Agency.

CONCLUSION

[11] In light of the above, the Agency finds that no terms and conditions, including costs, are to be awarded in connection with the withdrawal of DTI’s application.