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Interlocutory Decisions : 2000

2000-03-10

LET-W-78-2000

File No. W 9255/H1-1

Halifax Port Authority

This is further to the motion by the Halifax Port Authority (the HPA) dated February 6, 2000 requesting that the Canadian Transportation Agency (the Agency) grant a stay of proceedings in the subject-noted application. The HPA submits that, in light of a similar application filed by Halterm Limited (Halterm) with the Federal Court, Trial Division (the Federal Court), a stay of proceedings in the application before the Agency, pending a final determination by the Federal Court, is necessary to avoid a multiplicity of proceedings initiated by Halterm which deal with the same factual and legal issues. The HPA submits that the harm to be caused to the HPA by the Agency continuing its investigation relates to the abuse of process in being required to expend the time and money to "meet two different legal claims in two different fora arising from the same facts at the same time"; the possibility of inconsistent findings of fact and law; and the possibility of "double recovery". Halterm, on the other hand, asserts that the HPA has not met the test for the grant of a stay in that it has not shown irreparable harm by having to defend in different proceedings and has not shown that "the balance of convenience justifies depriving Halterm of their statutory rights".

The Agency has considered the HPA's submission dated February 6, as well as Halterm's response dated February 17 and the HPA's reply dated February 22, and hereby denies the HPA's motion for a stay. On balance, having examined the evidence of harm and inconvenience submitted by the HPA, the Agency finds compelling reasons why it should proceed with its consideration of Halterm's application at this time, as set out below. The Agency accepts the position of Halterm with respect to the issue of "double recovery".

Section 52 of the Canada Marine Act (the CMA) provides the Agency with the specific legislative mandate to consider complaints regarding unjust discrimination in fees fixed under subsection 49(1) of the CMA. On January 25, 2000, the Agency determined that it has the jurisdiction, pursuant to subsection 52(1) of the CMA, to consider Halterm's application by finding that rental charges constitute "fees" for purposes of subsection 49(1) of the CMA. At that time, the Agency also indicated that it would determine whether a fee had been "fixed" for purposes of subsection 49(1) of the CMA following the oral hearing in the matter. This decision was conveyed orally to the parties and the written reasons for that decision were issued on February 4, 2000 in Decision No.73-W-2000.

Subsection 52(1) of the CMA requires that the Agency consider a complaint "without delay". Furthermore, subsection 29(1) of the Canada Transportation Act (the CTA) obliges the Agency to "make its decision...as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received", unless parties agree to an extension. Although, in light of the circumstances surrounding the ongoing proceeding, the public hearing in this matter scheduled to commence on April 3, 2000 has now been adjourned, the Agency intends to deal with the matter as expeditiously as possible.

Section 30 of the CTA specifically enables the Agency to continue exercising its jurisdiction to hear and determine questions of fact despite ongoing proceedings involving the same questions of fact in any court.

In summary, in view of the fact that jurisdiction over complaints of undue discrimination in fees fixed pursuant to subsection 49(1) of the CMA has been specially assigned to the Agency and in light of the Agency's decision of January 25, 2000 and Decision No. 73-W-2000 noted above, at this time the Agency shall proceed with its consideration of Halterm's application in the fulfilment of its statutory obligations.

The Agency acknowledges the subsequent receipt of the HPA's motion of February 24, 2000 to the Federal Court of Appeal for leave to appeal the Agency's Decision No. 73-W-2000. The Agency has also considered the HPA's related motion to the Agency dated February 25, 2000 for a stay of the Agency's Decision No. 73-W-2000, as well as Halterm's answer of February 29 to that motion and the HPA's reply of March 7, 2000.

In its submission, the HPA has noted two cases where the Agency has granted stays in the past; however, section 79 of the National Transportation Agency General Rules provides the Agency with a discretionary power to grant a stay of an order or decision and these decisions must be determined on a case by case basis on the merits of each application. In this case and in view of the complexities of the commercial relationship between the parties, the Agency finds it appropriate to not exercise its discretion under section 79 and, as such, denies HPA's motion of February 24, 2000 for a stay.

The Agency notes Halterm's submission at paragraph 7 of its February 29th answer that any stay application can be made to the Federal Court of Appeal which has jurisdiction over the leave to appeal application.