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CARRIERS - Regulation - Tariffs, rates and service charges - Ferries

Wednesday, November 06, 2019 @ 6:23 AM  

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Appeal by Oceanex Inc. from the dismissal of its judicial review application challenging the approval of the respondent Marine Atlantic’s 2016/17 commercial freight rates. Canada paid subsidies to Marine Atlantic, a federal Crown corporation, to maintain a freight and passenger ferry service between Nova Scotia and Newfoundland for a route Canada was constitutionally obliged to provide. The appellant, a privately-owned corporation, was a competitor of Marine Atlantic and provided freight service between Nova Scotia and Newfoundland. The Minister of Transport recommended the Governor in Council approve Marine Atlantic’s corporate plan, which included the rates. The Federal Court found it was Marine Atlantic, and not the Minister of Transport, who made the decision to implement the rates and as Marine Atlantic was not a federal board, commission or other tribunal, the Federal Court did not have jurisdiction to review the decision. It went further and held the National Transportation Policy was not a required consideration in setting the rates.

HELD: Appeal dismissed. The Federal Court considered the relevant factors in granting Oceanex public interest standing. The Federal Court made no reviewable error in determining that Marine Atlantic made the rate decision but erred in concluding the decision was not subject to judicial review. In making the rate decision, Marine Atlantic was exercising its powers of a natural person conferred by the Canada Business Corporations Act and the Federal Court was wrong to read that statute out of the definition of federal board, commission or other tribunal. In view of its role as a Crown corporation fulfilling a constitutional obligation, Marine Atlantic was a public body and its rate decision was of a public, not private, character. The Federal Court correctly determined there was no legal requirement in setting the rates to consider the National Transportation Policy. The Minister did not become accountable for the rates when he recommended Marine Atlantic’s corporate plan for approval by the Governor in Council.

Oceanex Inc. v. Canada (Minister of Transport), [2019] F.C.J. No. 1161, Federal Court of Appeal, E.R. Dawson J.A., J.M. Woods A.C.J. and J.B. Laskin J.A., October 10, 2019. Digest No. TLD-November42019007