DRL Vacations Ltd. (“DRL”) was unsuccessful in seeking judicial review of the decision of the Halifax Port Authority to select a vendor other than DRL to operate a retail market catering outlet for the passengers and crew of cruise ships entering the Port of Halifax

Administrative law – Administrative tribunals – Definition – Judicial review – Jurisdiction of Federal court – Port Authority – Vendor selection process

DRL Vacations Ltd. v. Halifax Port Authority, [2005] F.C.J. No. 1060, Federal Court, June 15, 2005, Mactavish J.

DRL submitted that although the HPA had formulated a process entitled a “Request for Proposals”, it was actually a call for tenders. DRL submitted that it was denied fairness in the tender process because criteria were used to evaluate the bids that were not disclosed to the companies making proposals. DRL also submitted that if the process was a request for proposals, the HPA nonetheless had a duty to deal with DRL fairly and in good faith and had not done so because it based its decision on non-disclosed criteria.

HPA submitted that there was a jurisdictional issue about whether it was acting as a “federal board, commission or other tribunal” within the meaning of sections 2(1) and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. HPA submitted that the Federal Court was without jurisdiction to deal with DRL’s application.

The Court proceeded through an analysis of the jurisdictional issue by beginning with a review of the statute. The Federal Court is a statutory court that does not have general and inherent jurisdiction. Section 18.1 of the Federal Courts Act allowed the Federal Court to review the conduct of federal boards, commissions and other tribunals. The definition of a federal board, commission or other tribunal is found in subsection 2(1) of the Act and is as follows:

“federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867.

The question for the Court was whether the HPA was acting as a “federal board, commission or other tribunal”.

The Court reviewed the relevant jurisprudence and in particular the decision in Halterm Ltd. v. Halifax Port Authority, (2000), 184 F.T.R. 16, wherein the Court held that the HPA was a “federal board, commission or other tribunal” with respect to decisions it had made about negotiations for the lease of a container port terminal.

The Court distinguished the Halterm decision on the basis that the powers exercised by the HPA in making provision for a souvenir or catering shop for the passengers and crew of cruise ships was only incidental to the business of the Port of Halifax, whereas the lease of real property for a container port terminal was more directly related to the business of the HPA as a port.

The Court articulated that an institution may be considered to be a “federal board, commission or other tribunal” for some purposes and not for others. The character of the HPA was taken into consideration as it was an organization created by Parliament with responsibility for Canada’s port system. The Parliament’s intent was that Canada’s ports be operated in an efficient and commercially viable manner. However, the HPA also had a significant public aspect in that it was empowered to manage the Halifax port for the benefit of the whole country.

However, the Court took into consideration the particular power being exercised and considered it to be more in the nature of a private commercial activity. The Court stated:

What is in issue in this case is the licencing of port space for what has variously been referred to in these proceedings as a “souvenir shop”, a “market” and a “retail outlet”. The purpose of the shop was described by counsel as being to “enhance the port experience” for the passengers and crew of cruise ships docking at the Port of Halifax.

In my view, such a souvenir shop is a purely commercial enterprise, one which is incidental to the HPA’s main responsibility for managing port activities relating to shipping, navigation, transportation of goods and passengers, and the storage of goods. As such, I find that the HPA was not acting as a “federal board, commission or other tribunal” when it made the decision under review in this case.

The Court determined that it did not have jurisdiction to deal with the application for judicial review and so the submissions of DRL on the judicial review itself were not considered.

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