GCT Canada Limited Partnership v. Vancouver Fraser Port Authority

Date: 20220726

Docket: T-538-19

Citation: 2022 FC 1109

Ottawa, Ontario, July 26, 2022

PRESENT: The Honourable Mr. Justice Pamel

BETWEEN:

GCT CANADA LIMITED PARTNERSHIP

Applicant

and

VANCOUVER FRASER PORT

AUTHORITY and

ATTORNEY GENERAL OF CANADA

Respondent

JUDGMENT AND REASONS

Contents

I. Overview................................................................................................................................ 3

II. The parties.............................................................................................................................. 5

III. History of Deltaport terminal expansion prior to the proposed DP4 project......................... 7

IV. The RBT2 and DP4 projects................................................................................................ 10

V. The March and September 2019 decisions and the institution of the present proceedings . 21

VI. Procedural history................................................................................................................ 30

VII. Legislative framework ......................................................................................................... 36

Page: 2

VIII. Issues.................................................................................................................................... 38

IX. Standard of review............................................................................................................... 39

X. Analysis................................................................................................................................ 39

A. Preliminary matter: Is the application for judicial review moot and premature? .......... 39

B. Did the VFPA breach the principles of natural justice and procedural fairness by

rendering a decision tainted by bias and by breaching GCT’s legitimate expectations

regarding the review of its PPE?.................................................................................... 43

(1) Has the VFPA demonstrated impermissible bias by closing its mind to the DP4

project?..................................................................................................................... 54

(a) Were the March and September 2019 decisions, the manner in which they were

made and the statements made therein, reflective of an actual bias or even a

reasonable apprehension of bias on the part of the VFPA?............................... 55

(i) Stated rationale........................................................................................... 56

1. The notion of prohibition....................................................................... 56

2. The competition concerns...................................................................... 65

(ii) The tactical way that the March and September 2019 decisions were

orchestrated ................................................................................................ 77

1. The role of the VFPA’s previous law firm in the decision-making

process and the paucity of the tribunal record ....................................... 77

2. The current law firm and the tactical attempt to game the system ........ 84

3. Deliberate avoidance of transparency by the VFPA in an effort to

immunize itself from the bias allegation................................................ 90

4. Efforts to undermine DP4 to third-party stakeholders......................... 100

(iii) The declaration of preference for RBT2 without a proper evidence-based

assessment ................................................................................................ 114

(b) Failure to respect policy of separation of proponent and regulatory functions 116

(c) Are the VFPA decision makers biased as a result of any financial interest in the

development of the RBT2 project?.................................................................. 119

(d) Contradictions in the VFPA’s positions as evidence of bias ........................... 123

(e) Final thoughts on the bias issue ....................................................................... 125

(2) Has the VFPA breached GCT’s legitimate expectations? ..................................... 131

C. Mootness and prematurity............................................................................................ 149

D. Does this Court have the jurisdiction to grant the relief sought by GCT?................... 150

XI. Conclusion ......................................................................................................................... 151

ANNEX....................................................................................................................................... 154

Page: 3

Overview

[1]

The Canada Marine Act, SC 1998, c 10 [CMA], invests port authorities with the power to

manage the marine transportation of goods and people, as well as related and necessary services,

within their ports, the whole as may be permitted under their letters patent and otherwise

provided for under the CMA and its regulations. The Vancouver Fraser Port Authority [VFPA] is

one such port authority. As operator of the Port of Vancouver, the VFPA is responsible for,

amongst other things, the long-term commercial advancement of the port, undertaking

commercially and environmentally sustainable development plans consistent with the purpose of

the CMA, and following through on those development plans in line with its strategic goals. It

can operate the port facilities itself, or act as landlord and lease port property to commercial

operators.

[2]

Global Container Terminals Canada Limited Partnership [GCT] is one such commercial

operator, and operates two container terminals within the jurisdiction of the Port of Vancouver,

one of which is at Roberts Bank in Delta, British Columbia [GCT Deltaport], by way of lease

with the VFPA; GCT is the tenant. By way of judicial review, GCT challenges two decisions of

the VFPA, the first by which the VFPA refused in March 2019 to formally process GCT’s

preliminary project enquiry [PPE] for the further expansion of GCT Deltaport [DP4 project]

through the VFPA’s Project and Environmental Review Process [PER Process], and the second,

a few months later, by which the VFPA purportedly rescinded in September 2019 its earlier

decision and advised GCT that the port authority would assess the DP4 project proposal through

its PER Process, but on the understanding that the VFPA’s preferred project for achieving

capacity expansion at Roberts Bank continued to be a different project [RBT2 project], which

Page: 4

was being developed by the VFPA and which was at that time further advanced and undergoing

environmental impact assessment; the VFPA advised GCT that its review of the DP4 project

would be conducted having regard to, amongst other things, the status of the RBT2 project in

meeting the anticipated increased shipping demands of the Port of Vancouver.

[3]

GCT claims that the VFPA has, through its conduct, demonstrated an incurable failure to

act as an impartial decision maker under its statutory mandate set out in the CMA to consider the

DP4 project, and that its executives closed their mind to the DP4 project without even assessing

it under the port authority’s very own regulatory decision-making process, thus exhibiting actual

bias against the project when the VFPA issued its decision to GCT in March 2019. The second

decision in September 2019 purportedly reversing the earlier decision and confirming that the

VFPA would assess the DP4 project under the PER Process was, according to GCT, an

acknowledgment of such bias and a tactical attempt by the same executives to cover up the

reversible error in the VFPA’s earlier decision. GCT now seeks to set aside both decisions, and

on account of what it claims to be actual bias on the part of the VFPA’s executives which

purportedly taints the entire review process, GCT is asking this Court to order an alternative

assessment process—tantamount to an order for mandamus—compelling the Minister of

Transport [Minister], or his delegate, such as Transport Canada, to step in and oversee the review

process for the DP4 project and, as clarified by GCT during the hearing, to actually conduct

certain components of the review process given the lack of process at the VFPA to address any

of the issues of concern to GCT, in particular the VFPA’s purported bias. In addition, GCT seeks

a series of declarations confirming the existence of such bias.

Page: 5

I am not persuaded by GCT that there is any evidence that the VFPA executives were

[4]

actually bias against the DP4 project or that what GCT claims to be the indicia of such bias is in

any way evidence of a reasonable apprehension of bias on the part of the VFPA executives.

Consequently, and as a result of subsequent changes to the governing legislation which affect the

environmental assessment process to which the DP4 project would be subject, as well as the

VFPA’s eventual decision to actually proceed with a review of the DP4 project under its PER

Process, I am dismissing GCT’s application as the issues between the parties have become moot.

[5]

I should also state at the outset that, as pleaded, these proceedings were not meant to be,

and were not argued before me as, a trial on the governance model and the quality of governance

of port authorities under the CMA, and of the VFPA in particular. The principal issue before me

was whether the VFPA breached its obligation of procedural fairness by issuing a biased

decision by refusing to process GCT’s application for DP4 or because it failed to respect GCT’s

legitimate expectations in relation to the VFPA’s own process for regulatory review of large-

scale projects within the Port of Vancouver. I leave the issue of optimization of proper and

modern port authority governance in the hands of Transport Canada as part of its Ports

Modernization Review commenced in 2018.

The parties

[6]

GCT is an affiliate of GCT Global Container Terminals Inc. and is jointly owned by

affiliates of the Ontario Teachers’ Pension Plan Board, British Columbia Investment

Management Corporation and Australian-based IFM Investors. In addition to GCT Deltaport,

GCT operates three other terminals in North America: GCT Vanterm, which is also within the

Page: 6

Port of Vancouver; GCT Bayonne in New Jersey; and GCT New York situated on Staten Island,

New York.

[7]

The VFPA is a Canadian port authority established through letters patent dated

December 22, 2007, issued by the Minister under the authority of section 8 of the CMA and is

the result of the amalgamation of the Vancouver Port Authority, the Fraser River Port Authority

and the North Fraser Port Authority; supplementary letters patent have been issued since 2007

dealing with specific matters such as acquisitions or dispositions of land. The VFPA is

responsible for the management of federal port lands and waters within its jurisdiction in the Port

of Vancouver. Its mandate under the CMA includes acting as both proponent and regulator with

respect to land and project development under its authority. There is no issue between the parties

that the VFPA’s jurisdiction includes the area within which the development of the RBT2 and

DP4 projects is intended to be undertaken.

[8]

Section 28 of the CMA authorizes the VFPA to operate the port, without any statutory

requirement that it do so through an independent terminal operator. Companies seeking to

undertake activity within the Port of Vancouver, including the leasing of port land and the

activities inherent in building and operating marine terminals, require the authorization of the

VFPA (section 23 of the Port Authorities Operations Regulations, SOR/2000-55 [Regulations]).

There is no issue between the parties that the VFPA has the authority to develop the RBT2

project on its own or that GCT must seek VFPA authorization to undertake the DP4 project, save

that the VFPA has asserted that it has traditionally acted as the proponent of large-scale projects

involving the reclaiming of land.

Page: 7

[9]

As regards GCT Deltaport, the VFPA acts as landlord in a leasehold concession pursuant

to lease and berth corridor agreements with GCT, under which GCT has tenancy obligations

including, amongst other things, the payment of rent and obligations in relation to repair and

maintenance, permitted use, compliance with laws, and landlord re-entry rights.

[10] The Attorney General of Canada [AGC] is named as a respondent because GCT seeks, as

a possible remedy, that the Minister or another delegate of the Crown oversee the review and

assessment process for the DP4 project.

History of Deltaport terminal expansion prior to the proposed DP4 project

[11] GCT Deltaport is today a 210-acre, 2.4 million TEU (twenty-foot equivalent unit)

container terminal located in the outer harbour of Roberts Bank, constructed on pods of

reclaimed land built on the southern end of a man-made causeway running over a shallow bank

and connecting the terminal to the British Columbia lower mainland at Delta. It first began

operating as a container terminal in 1997. In 2002, the predecessor to the VFPA (which I will

refer to simply as the VFPA) embarked on a port expansion strategy in answer to the expected

growth of trans-Pacific container shipping, which included, at the time, the development of two

separate container terminal projects at Roberts Bank: the first being the Deltaport Third Berth

Project [DP3], which was to consist of adding a third berth to the existing terminal, and the

second being what was described at the time as the Terminal 2 Project [T2], which was a

precursor to RBT2. DP3 would be an extension of the existing Deltaport terminal on its northern

side, landward into shallower waters, and running along the eastern side of the causeway. The T2

project was to be developed along both the eastern and western sides of the causeway and also

Page: 8

leading north into shallower waters (E1 and W3 options), but included, in addition, a separate

extension of the terminal to the southwest, and away from the causeway into deeper waters (W1

and W2 options). Assessment and review of the projects was to be undertaken, and on

February 24, 2003, the VFPA, as proponent of the projects, submitted separate letters of intent

for the projects to the British Columbia Environmental Assessment Office so as to initiate a pre-

application review; meetings with federal and provincial regulators to discuss the two projects

took place on March 11, 2003.

[12] As one of the agencies responsible for approving the projects, the Department of

Fisheries and Oceans [DFO] reviewed the proposed projects: two letters were sent to the VFPA,

the first by DFO on April 1, 2003, and the second by the Minister of Fisheries and Oceans on

July 29, 2003 [2003 DFO letters]. The 2003 DFO letters expressed concerns regarding

development and the reclaiming of additional land along the eastern side of the causeway on

account of the “critical value of the fish habitat in the area”. As regards the DP3 project, DFO

stated that it “will not consider issuing a Fisheries Act Section 35(2) authorization for the

destruction of this critical fish habitat”. As regards the T2 project, DFO expressed similar

concerns regarding the proposed expansion into shallower waters, both on the eastern and

western side of the causeway, and thus confirmed that it would not authorize the development as

proposed. Just as importantly, DFO suggested that the port authority, as proponent of the

terminal expansion projects, focus its efforts on proposals that had less of a damaging impact on

the environment, and confirmed that it would be willing to work with the port authority on the

development of the separate area of T2 which extended beyond the edge of the causeway to the

southwest—seemingly an area to the south of where the W1 and W2 options for T2 were being

Page: 9

proposed—“[a]s these options are in deeper water, where construction would likely have less

impact on the Estuary’s fish habitat”.

[13] The 2003 DFO letters, amongst other things, caused the VFPA to reassess the projects.

Eventually, a scaled down version of the DP3 project (about 30% less land mass on its north side

so as to reduce its overall footprint on the landward side and thus accommodate DFO concerns)

would move forward; on February 2, 2006, the VFPA advised the British Columbia

Environmental Assessment Office that it was withdrawing its letter of intent to initiate a pre-

application review request for T2 for the time being. From the point of view of the VFPA, the T2

project was thereby placed “on hold” pending further discussions with various stakeholders,

including consultations with First Nations in the area, to address the outstanding environmental

and community issues that had been identified during previous discussions. T2 would remain as

a possible consideration for future expansion after the completion of DP3.

[14] DFO and Environment Canada jointly published a comprehensive study in July 2006 on

the revised DP3 project, acknowledging that the reduced footprint minimized the potential

effects on existing fish and fish habitat. The footprint-reduced DP3 project received final

approval on December 8, 2006; the project was completed and became operational in January

2010, increasing the GCT Deltaport terminal’s capacity by 600,000 TEUs per year.

[15] In October 2015, the VFPA issued a permit allowing GCT to undertake the Deltaport

Terminal, Road and Rail Improvement Project: a series of improvements at GCT Deltaport,

mostly involving upgrades to the existing road and rail infrastructure at the container terminal

Page: 10

and causeway, resulting in a further increase in container capacity of 600,000 TEUs per year,

thereby bringing the terminal’s total capacity to 2.4 million TEUs per year, where it stands today.

The RBT2 and DP4 projects

[16] As a commercial enterprise, the VFPA must undertake long-term planning to

accommodate the evolving needs of the industry and the Port of Vancouver. In 2010, the VFPA

established the Container Capacity Improvement Program [CCIP] as part of its long-term

strategy to meeting the increasing demand for container terminal capacity at the Port of

Vancouver; the options that the CCIP was to consider included increasing the capacity and

efficiency of existing terminals, possibly converting existing underutilized terminals to handle

container traffic, and building new terminals as may be required.

[17] With the DP3 project becoming operational in January 2010, the VFPA turned its mind

back to the possible development of a new terminal at Roberts Bank, and in September 2013,

engaged the environmental assessment process when it submitted to the Canadian Environmental

Assessment Agency its project description for the approval of an updated version of the T2

project (the RBT2 project), in preference to further development in the area to the north of DP3

previously identified as problematic for development; the RBT2 project entailed constructing a

new marine terminal area in the waters off Roberts Bank, extending into deeper waters to the

southwest of the causeway, and to the west of GCT Deltaport, thus avoiding development and

the reclaiming of land to the north—landward side—in shallower waters, which was one of the

problematic aspects identified by DFO in 2003 with the initial T2 project. The RBT2 project

would provide up to three additional berths and add an estimated additional 2.4 million TEU

Page: 11

capacity to the Port of Vancouver. In January 2014, the Minister of the Environment (now the

Minister of Environment and Climate Change) referred the environmental assessment of the

proposed RBT2 project to a independent review panel [Review Panel] in accordance with section

38 of the then in force Canadian Environmental Assessment Act, SC 2012, c 19, s 52 [CEAA]. In

fact, the VFPA’s Land Use Plan adopted in October 2014 specifically provides for the

development of RBT2.

[18] In the meantime, GCT was also moving forward with its expansion plans, and in 2014,

began plans to further extend GCT Deltaport to add an additional 2 million TEUs of annual

capacity [DP4 project]. DP4 would be built within VFPA-managed federal lands and water and

within Tsawwassen First Nation water lots, and part of the project dredging would extend past

VFPA-controlled lands into VFPA navigational jurisdictions and provincial seabed. The

extension and necessary reclaiming of land would be contiguous to the existing terminal to the

north—landward side—of GCT Deltaport, into shallower waters and to the east of the causeway,

i.e., in the area of the E1 option for T2 which was identified as problematic for development in

2003 by DFO at the time.

[19] On March 27, 2015, the VFPA submitted its Environmental Impact Statement [EIS] for

the RBT2 project, which included an alternatives assessment, for federal review. Eventually, the

Review Panel determined that the EIS was sufficient and that the matter may proceed to public

hearings on the project; public hearings on the RBT2 project would take place in May and June

2019. At the same time, GCT’s PowerPoint presentation of its proposed expansion project along

with the preliminary assessment of the DP4 project by VFPA management, in particular, the

Page: 12

financial and environmental considerations were discussed during a March 31, 2015, meeting of

the VFPA board of directors.

[20] As part of the planning process for RBT2, the VFPA undertook a procurement process to

identify and select a commercial operator for the new RBT2 container terminal; GCT applied in

June 2015 to become the terminal operator for RBT2, along with continuing to be the operator of

the adjacent Deltaport terminal, but was not successful.

[21] Informal discussions continued between GCT and the VFPA through 2016 when the

parties began to discuss the DP4 project in detail, and on January 13, 2017, GCT made its first

formal presentation of the proposed DP4 project to the VFPA. Within a few months of the

meeting, the VFPA retained Hemmera Envirochem Inc. [Hemmera] to review regulatory

changes, advances in scientific understanding and changes to DFO policies since the 2003 DFO

letters, when DFO refused to authorize development of the area now being proposed for the DP4

project, and to consider the likelihood of DFO approving further expansion along the east side of

the causeway to the landward side of the existing GCT Deltaport terminal. GCT agreed to pay

half of the cost for the review.

[22] In November 2017, Hemmera delivered its report to the VFPA [Hemmera Report],

which, although not squarely addressing the issue of whether the 2003 DFO letters constituted a

prohibition of development in the area at the time, set out a series of sequenced activities (eight

tasks) to be undertaken for any proponent looking to pursue future port infrastructure

development on the east side of the causeway, landward of GCT Deltaport, in possible answer to

Page: 13

the concerns expressed by DFO in 2003. GCT argues that I should read the Hemmera Report as

confirming that the 2003 DFO letters did not constitute a prohibition against development of the

area now proposed for DP4. However, the Hemmera Report made it clear that Hemmera “draws

no conclusions related to the potential likelihood of attaining approvals and authorizations for

project(s) along the East Causeway of Deltaport.”

[23] On December 8, 2017, GCT and the VFPA held a meeting during which GCT presented

its views on the marketplace and existing competition amongst container terminal operators—

issues of concern to the VFPA—and reiterated its intention to develop the DP4 project. In

parallel to the discussions it was having with GCT regarding the DP4 project, the VFPA was

moving forward with the development of RBT2.

[24] On December 6, 2017, the VFPA sent a briefing note to the then federal Minister of

Public Services and Procurement—also the member of Parliament for the riding of Delta at the

time [December 2017 Briefing Note]—espousing the benefits of the RBT2 project and the need

for its development, and in particular outlining concerns with market concentration within the

Port of Vancouver, with emphasis on avoiding dominance by any one single terminal operator

within the port. I understand from the record and representations of GCT before me that GCT’s

two terminals (GCT Vanterm and GCT Deltaport) together serviced around 78% of the container

traffic within the Port of Vancouver at that time.

[25] In line with its procurement process to identify and select an operator for the RBT2

container terminal, the VFPA stated in the December 2017 Briefing Note that, consistent with

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the approach of maintaining healthy competition within the port, “no concessions or agreements

will be granted for the Roberts Bank Terminal 2 [RBT2] Project that would result in an operator

having more than 60 per cent of the container handling capacity within the Port of Vancouver.”

The VFPA continued by stating that “[o]ngoing control by a single operator of more than 60 per

cent of the container capacity within the Port of Vancouver has proven to be detrimental to

customers of the gateway.” The briefing note went on to explain that any existing container

terminal operator which sought to also operate RBT2 would have to demonstrate that, amongst

other things, “its total container handling capacity within the Port of Vancouver would not

exceed 60 per cent of the total available capacity.” The selection process seems to be ongoing

from what I understand, at least as of the time of the hearing before me.

[26] The record includes similar briefing notes prepared by the VFPA in preparation for

meetings with the then federal Minister of Transport and the British Columbia Minister of

Transportation and Infrastructure in January and February 2018 to discuss and promote the need

for the development of the RBT2 project. As regards the federal Minister of Transport in

particular, the issues included that the VFPA’s borrowing limits under its letters patent would

have to be increased in order to finance the RBT2 project. In discussing alternatives to the

project, the briefing notes made it clear that the VFPA “concluded that the Roberts Bank

Terminal 2 Project is the only viable option to ensure that the Port of Vancouver can efficiently

handle growing trade in containers when it is required in the mid-2020s, and there are no other

suitable alternatives that can reliably meet the need for additional capacity for the long-term”

[emphasis added]. Specifically as regards the proposed DP4 project, the VFPA stated:

No other proponent proposal has been formally submitted to the

port authority or government, though we are aware one is

Page: 15

contemplated by GCT, albeit in the area of Roberts Bank already

dismissed by the Minister of Fisheries in 2003. If a proposal were

to be submitted, it would likely take at least nine years for

approval, based on the experience of the Terminal 2 proposal to

date, as it would likely be reviewed by a federal panel.

[Emphasis added.]

[27] There is no issue between the parties that both RBT2 and DP4 are not required

concurrently by the Port of Vancouver in order to meet short-and medium-term increases in

demand for container space. On February 2, 2018, the VFPA sent a letter to GCT [February 2,

2018 letter] aiming to “provide clarity and transparency in respect of VFPA’s approach” in its

consideration of what was expected to be a permitting application for the DP4 project. After

stating that it has, over several decades, “given extensive consideration to expansion of port

facilities on either side of the causeway, and the decision to proceed with T2 was made having

regard to this prior analysis (including environmental concerns associated with further

development on the east side)”, the VFPA stated the following in relation to how it would

consider any application by GCT for the development of DP4:

Specifically, GCT is at liberty to propose a project and apply to

have it reviewed under VFPA’s project and environmental review

process. For a project of the nature contemplated by GCT, and

having regard to the history of environmental issues associated

with the eastern side of the causeway, any proponent of such a

project should expect significant environmental assessment

requirements. We would encourage GCT to speak with an

independent environmental consultant familiar with VFPA’s

process and environmental assessment of similar projects to obtain

a realistic understanding of the time that would take, the amount of

information required, the cost of doing so and the likelihood of the

environmental issues being amenable to sufficient mitigation at the

end of the day.

It is also important that we be clear that, even if the previously

identified environmental issues associated with such a project

proved to be mitigable to some extent, those impacts would have to

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be considered in a cumulative context with T2. Further, given the

multifaceted role of VFPA as discussed above, we believe it would

be entirely appropriate and indeed incumbent upon VFPA to also

consider the impacts of a DP4 project on the overall port

operations. VFPA would also consider the issue of timing,

recognizing the very significant lead times required for such

projects, and the looming need for more near term capacity in the

Port of Vancouver.

[Emphasis added. The VFPA’s reference to T2 is actually to the

new RBT2 project.]

[28] The VFPA’s concerns regarding container terminal market concentration within the Port

of Vancouver and the perceived lengthy and difficult road ahead for DP4 to gain environmental

approval were again expressed in the VFPA executive’s briefing note on the status of the RBT2

project prepared for the board of directors meeting of March 21, 2018. The VFPA’s campaign to

develop RBT2—and according to GCT, a campaign to undermine the DP4 project—continued

throughout April and May 2018 with letters to the then federal Minister of Transport on April 27,

2018, and to the then federal Minister of International Trade on May 5, 2018; both letters

provided an update on the status of the RBT2 project and also comments on the reasoning for

preferring RBT2 over DP4. The VFPA stated:

We are aware of one other potential container terminal expansion

project that has been discussed by an existing container terminal

operator in the Vancouver gateway. Its proposed location is not a

new idea, having first been mooted as a possible location for

Terminal 2 over 15 years ago. It is, however, a highly sensitive

location that the Minister of Fisheries stated unequivocally in 2003

would not be permitted. With that direction, we sought to avoid

development in the area referred to by the minister to preserve the

fragile inter-tidal marine aquatic ecosystems that exist there.

Terminal 2 would introduce a new container terminal operator to

the West Coast of Canada, respecting the principles of choice and

commercial competition. We believe this will benefit the Canadian

economy by ensuring three strong independent container terminal

Page: 17

operators are in place to serve Canada’s needs and provide a

competitive market place.

[Emphasis added.]

[29] In a May 11, 2018, email entitled “2003 letter ruling out terminal development adjacent

to current Deltaport terminal”, the VFPA sent a copy of the July 29, 2003 DFO letter to a

government official. In particular, the email stated:

Further to our brief discussion about the idea GCT have been

raising around an extension of Deltaport, we looked into this at the

start of the RBT2 process and did not pursue it as it was explicitly

ruled out by the Liberal Minister of Fisheries Robert Thibault in

2003 (letter attached – options 2 & 3 are in the location GCT

suggests).

Even if this could be overturned, which would be a challenge to

say the least, it would be impossible to permit and develop a

facility to be ready anywhere near in time to meet demand. It

would almost certainly be a longer process than RBT2 and we’ve

been working on permitting RBT2 (in the deeper location referred

to in the letter) for 7 years already and it will likely be another

9 years to get through permitting, construction and commissioning.

[Emphasis added.]

[30] In October 2018, the VFPA published on its website an “Overview and Rationale” setting

out the benefit of the RBT2 project and outlining the status of the project and the work that had

been undertaken to date for the project as regards consultation with stakeholders, including First

Nations communities, an environmental impact review, its terminal operator procurement

process, and the actual building of the project. In the section on possible alternatives to the

project, the VFPA stated that the expansion of the existing GCT Deltaport facility through the

DP4 project was “not an option for two main reasons”: first, DFO had prohibited any further

land reclamation inland from Deltaport because of environmental sensitivity and, second, the

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VFPA wished to prevent one terminal operator from controlling a significant majority of the

market for container terminal services.

[31] On October 5, 2018, GCT delivered a further presentation to the VFPA in support of the

DP4 project, during which a tour of the terminal and an overview of the proposed expansion was

provided; present at the presentation was the majority of the VFPA’s board of directors as well

as the VFPA’s senior executives. However, the issues of the environmental challenges to the

development of DP4 in the area that proved problematic in 2003 and of terminal operator market

dominance within the Port of Vancouver continued to play on the mind of the VFPA—the record

before me includes a series of email exchanges dated between October 3 and 15, 2018 between

the VFPA and outside consultants retained to review and prepare a report on the issue of market

dominance within ports around the world, as well internal emails within the VFPA regarding a

review of the Hemmera Report and its conclusions at the time.

[32] At the request of GCT, on January 24, 2019, GCT and the VFPA held a pre-PPE meeting

as part of the first procedural requirement for review of capital projects under the VFPA’s PER

Process. The agenda for the meeting included a discussion on where engagement of the parties

stood on the issue of DP4 as well as the status of the preliminary work undertaken by GCT in

line with the three-phase/eight-task process outlined in the Hemmera Report for the advancement

of future projects along the east side of the causeway—it would seem that GCT had completed

Phase 1 of the eight phases recommended by Hemmera, being the pre-feasibility study. At the

conclusion of that meeting, the VFPA suggested that a further pre-PPE meeting would be

required. The next day, GCT asked for further clarity regarding such further meeting and

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although hesitant as to whether it was even necessary, requested that any further pre-PPE

meeting take place before the end of the week of February 4, 2019, otherwise GCT was to be

“filing the PPE in accordance with all VFPA’s posted guidelines.” The VFPA proposed February

13, 2019, for the next meeting, but as the date was outside GCT’s proposed window, on February

5, 2019, GCT formally submitted its PPE for the DP4 project to the VFPA for review in

accordance with its PER Process.

[33] GCT’s PPE was received and distributed internally amongst VFPA management. It

would seem that the PER Process for the DP4 project was to begin, as internal VFPA emails

state that “staff will be doing an internal review over the comings days/weeks, and no doubt a

number of initial meetings with GCT will be required.” In fact, on February 7, 2019, the VFPA

confirmed to GCT receipt of its PPE and advised that VFPA staff “will undertake a review of the

submission to better understand the project and determine if our submission criteria has been

satisfied in order to continue processing. Once this is done, staff will either confirm our February

13 meeting with you or will reschedule a meeting should further information and engagement be

necessary to process your submission.” The proposed meeting for February 13, 2019, with GCT

was eventually deferred at the suggestion of the VFPA on February 11, 2019, as its staff had not

completed their review of the information submitted by GCT; as confirmed during the cross-

examination of Mr. Peter Xotta, Vice-President, Planning and Operations for the VFPA, nor had

a project lead for the GCT’s proposal been appointed at that time.

[34] The affidavit of Mr. Xotta, filed in August 2021 in replacement of the initial affidavit of

Mr. Yeomans who was no longer able to be cross-examined, indicates that he participated in

Page: 20

several discussions with other members of the VFPA executive regarding the PPE, and in

particular, the port authority’s pending decision whether to accept the PPE—although it had

indicated to GCT that it was to undertake a review of the submission so as to better understand

it—so as to advance “VFPA’s statutory decision-making process under the [CMA]”. The VFPA

executives met on February 13, 2019 (it seems as though all members of the seven-person

executive team were in attendance, including Mr. Xotta), with a decision being reached by

consensus which was eventually to be communicated to GCT on March 1, 2019. In his cross-

examination, Mr. Xotta confirmed that there were no documents that reflected the discussions

and decision made by the executives at the time, other than the formal decision that was to be

sent to GCT on March 1, 2019. In the meantime, exchanges continued between the parties during

the last two weeks of February 2019, with GCT looking for a status report and the VFPA

responding only that “senior management is considering the GCT request and the submission

materials …”. However, in response to a media request in relation to GCT’s proposed expansion

project, on February 26, 2019, the VFPA advised that it was:

reviewing GCT’s submission that was posted on the independent

review panel registry, and don’t have any specific comments at this

time.

However, what is important is that the Roberts Bank Terminal 2

Project is the only project on the West Coast that is currently in the

review process and that could potentially meet the need for

container terminal capacity when Canada needs it by the late

2020s.

Should GCT decide to proceed with the Deltaport expansion, they

would need many years to do all the planning and environmental

work to enter into the federal review process, followed by the

environmental review – which has taken already four years for the

RBT2 Project – and then by construction. This would make it very

difficult for GCT to meet demand that is just a few years away.

Page: 21

The March and September 2019 decisions and the institution of the present proceedings

[35] On March 1, 2019 (the letter is incorrectly dated February 29, 2019), the VFPA sent a

letter to GCT, reflecting the decision reached by the VFPA executives on February 13, 2019,

stating: “we will not be processing your [PPE] through our [PER Process] at this time”

(emphasis added) [March 2019 decision]. In its letter, the VFPA noted that DP4 would involve a

footprint expansion extending onto the same environmentally sensitive area on which the DFO

expressed concerns in 2003 as involving “unacceptable impacts to critical fish habitat”. The

March 2019 decision continued by stating:

It was very clear that the reduced footprint was a significant factor

in the assessment and ultimate recommendation for approval of the

DP3 Project by DFO and Environment Canada, and that the

originally proposed footprint of 80 acres would not have been

acceptable.

It is notable that your proposed DP4 Project would involve a

footprint expansion of 56 hectares (138 acres), extending into and

well beyond the footprint on the very same intertidal habitat which

was specifically protected by the reduced footprint of the DP3

Project to address the opposition of DFO to impacts on what they

regarded as critical intertidal habitat.

[Emphasis added.]

[36] In addition, and underscoring the same two reasons stated in its 2018 “Overview and

Rationale” document, i.e., the 2003 DFO letters and market concentration within the port, the

VFPA stated that the RBT2 project was its preferred project for expansion of capacity at Roberts

Bank:

As you are aware, the VFPA plans for container capacity

expansion at Roberts Bank have included additional expansion on

the west side of the terminal, in deeper water, as encouraged by the

Minister of Fisheries and Oceans in 2003.

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…

The RBT2 Project is our preferred project for achieving the

expansion of capacity to meet projected increases in demand.

…

You must understand that your DP4 proposal, even if it is able to

receive the necessary environmental and regulatory approvals,

could only be considered as subsequent and incremental to the

RBT2 Project. We note that your proposed development timeline

would conflict with the implementation of RBT2 capacity. Taking

all of the above factors into consideration, we will not be

processing your Enquiry through our project and environmental

review process at this time. We would be prepared to review

development plans for Deltaport with GCT at a point when we can

more accurately project the need for incremental capacity beyond

RBT2.

[Emphasis added.]

[37] On March 4, 2019, GCT expressed disagreement with the VFPA’s decision not to

process the PPE through the port authority’s PER Process at that time, confirmed that it was

nonetheless continuing to advance its environmental and engineering studies, and requested port

authorization to access the causeway to undertake the necessary environmental studies.

[38] The record before me also contains a draft of a letter dated March 25, 2019, from the

VFPA to the then Deputy Minister of Fisheries and Oceans [March 25, 2019 draft] seeking

“clarification from Fisheries and Oceans Canada (DFO) on earlier direction regarding terminal

expansion at Roberts Bank, B.C.” and advising that it had “recently had an inquiry from a

proponent interested in expanding a Roberts Bank port terminal by reclaiming lands east of the

existing terminals … .” In the draft, the VFPA was requesting “confirmation from DFO that its

earlier direction still stands, and that no terminal expansion on the east side of the causeway will

Page: 23

be permitted.” For some reason, the draft letter was never sent, however, in response to what is

expressed to be a public relations campaign undertaken by GCT to promote the DP4 project as

an alternative to RBT2, the record before me includes an internal VFPA document entitled

“Issues Management Plan”, also dated March 25, 2019 [Issues Management Plan], that provides

speaking points for the VFPA to address the DP4 project and to further promote the RBT2

project.

[39] On March 28, 2019, GCT served and filed the present notice of application for judicial

review—at the time limited to the March 2019 decision; GCT also filed a second application for

judicial review of the Review Panel’s decision to proceed with public hearings for RBT2

(T-537-19); however, that application has been stayed.

[40] On March 29, 2019, the VFPA sent a briefing note to the Prime Minister’s office

following up on discussions that took place earlier in the week meant to address public concerns

and opposition to the RBT2 project, and address the port authority’s response to those concerns.

The briefing note provided, inter alia, that the “location of the proposed terminal was guided in

large part by direction from the minister of fisheries who advised in 2003 that only expansion

options beyond the existing Deltaport terminal in deeper water should be considered, since

Fisheries Act permits for options in highly sensitive habitat closer to the shore would not be

granted.” In reference to the DP4 project, the VFPA mentioned that the “port authority evaluated

the same area suggested for DP4 as one of several location options for the RBT2 Project, but

rejected it because Fisheries and Oceans Canada advised no Fisheries Act permits would be

issued for projects in that area due to it being sensitive inter-tidal waters.”

Page: 24

[41] On April 10, 2019, the VFPA met with the Prime Minister’s office. The follow-up emails

included a series of PowerPoint presentations and reports. The briefing note entitled “Concerns

and opposition” was updated on April 3, 2019, and although it did not mention the DP4 project

directly, it stated the following in the section on alternate options:

Should another project be proposed, we expect it would take at

least 15 to 20 years before the project could be built and

operational, similar to the length of time it will ultimately have

taken for the RBT2 Project. Therefore, any other project could not

be ready to meet demand when needed by mid-2020s, but could

possibly provide capacity for continually-growing demand by the

late 2030s.

[42] In May and June 2019, the Review Panel under the CEAA held public hearings on RBT2

and received submissions from a number of stakeholders, including GCT. During the Review

Panel hearings, representatives of DFO testified that the 2003 DFO letters were not meant to be a

blanket prohibition on future development of the area now being proposed for DP4, but only

addressed the proposed projects as they stood at that time. As stated during the Review Panel

hearings by DFO: “each project is weighed and based on the application received, the current

legislation and the current policies. So in future, should a project come in, DFO will review the

application and make a decision based on the information that’s presented to us.” As part of its

review process, the Review Panel considered whether the VFPA had carried out appropriate

assessments on alternatives to RBT2; during the hearings, GCT participated and argued, inter

alia, that the Review Panel should reject RBT2 in favour of DP4. In the end, the Review Panel

concluded that the VFPA had undertaken an appropriate assessment of alternatives to RBT2, and

submitted its final report to the Minister of Environment and Climate Change about nine months

later, on March 27, 2020. As of the hearing before me, final approval for the RBT2 project was

still pending.

Page: 25

[43] In the meantime, on August 28, 2019, the CEAA was repealed and replaced with the

Impact Assessment Act, SC 2019, c 28, s 1 [IAA], as a result of which DP4 would now be a

“Designated Project” under the IAA so that it may have to undergo a federal environmental

assessment process prior to review by the VFPA under its PER Process; the PER Process

nonetheless remains a necessary step in project approval, but with the enactment of the IAA, the

VFPA’s PER Process Application Guide [Guide] provided that the port authority may rely on the

results of the federal impact assessment where the assessment meets the VFPA’s standards and

requirements. That said, the IAA precludes the VFPA from making any decision on DP4 unless

and until the Impact Assessment Agency [Agency] gives its approval, approval which may never

be given if in fact the Agency rejects DP4. On the assumption that DP4 does pass Agency

approval, however, final say on the approval of projects within the Port of Vancouver remains

with the VFPA, with necessary permitting having to eventually pass through the PER Process.

Consequently, notwithstanding the new impact review process under the IAA, the VFPA remains

an active player in the approval process for DP4.

[44] Although I discuss this further below, on September 6, 2019, this Court issued an Order

disqualifying the VFPA’s legal counsel on the basis of a conflict of interest. According to the

affidavit of Mr. Xotta, shortly after retaining new counsel, on September 23, 2019, the VFPA

executives met by telephone to consider the implications of the said Order and the earlier March

2019 decision. Following further discussion amongst the VFPA executives, the VFPA informed

GCT [September 2019 decision] that, after further consideration regarding the PPE for the

proposed DP4 project, the VFPA was rescinding its March 2019 decision. The VFPA stated:

Having regard to all relevant information available to the Port

(including some which became available to us through the review

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panel process) we are hereby rescinding our [March 2019 decision]

and will proceed with receiving GCT’s Preliminary Project

Enquiry. Port staff will be in touch with your staff shortly on this

matter to discuss the timing of the Port’s process relative to the

impact assessment process DP4 would be required to undergo,

pursuant to the recently enacted Impact Assessment Act and

supporting regulations.

[Emphasis added.]

[45] Although advising that it was prepared to review the proposed DP4 project, the VFPA

reiterated its concerns:

In making this decision I wish to note that, as we made clear in the

review panel hearings, the Port still believes (based on prior

assessments of the area) there are considerable risks with the

proposed DP4 project as it relates to fish habitat. However, in the

circumstances, we are no longer of the view that they are of such a

nature that any consideration of DP4 is not an option. Instead, we

are open to considering GCT submissions (and responses to any

related questions or concerns) as part of a federal impact

assessment of DP4 and our PER process.

Similarly, in respect of the competitiveness and control question,

we remain of the view that this is a significant issue – one that we

have consistently made GCT aware of for some years now

(including in our commercial agreements and through the terminal

operator RFQ process). We continue to consider it potentially

problematic for the proposed DP4 project, but we are prepared to

further consider that issue through the information and analysis

that will be undertaken through the federal impact assessment of

DP4 and our PER process.

[Emphasis added.]

[46] In the end, the VFPA again addressed the issue of the GCT’s concerns over bias in the

review process:

With respect to your stated concerns about “bias” on the part of the

Port given its different roles, the Port considers these multiple roles

mandated by the Canada Marine Act and related regulations and

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thus an integral and appropriate aspect of the Port’s mandate.

Further, to the extent you may hold any residual concerns in this

regard, we note that before any decisions would be made by the

Port, the DP4 project would be subject to assessment under the

Impact Assessment Act, and that process would materially inform

the Port PER process.

Ultimately, and having said all the above, I wish to reiterate the

position noted in my [March 2019 decision] that, even if the DP4

project is able to satisfactorily address the above noted issues, the

Port would ultimately make a decision on the project having regard

to all relevant factors including effective and efficient port

operations (as we are mandated). This wold include, but is not

limited to, the status of the RBT2 project in terms of meeting

anticipated increased shipping demands.

[Emphasis added.]

[47] GCT responded to the VFPA on September 27, 2019, advising that it was of the view that

its PPE would not receive fair consideration under the Port of Vancouver’s PER Process. In any

event, GCT advised the VFPA that it was mindful of the new legislation and that the DP4 project

is considered thereunder as a Designated Project—meaning that any VFPA permitting decisions

relating to the project could not be made until it favourably completed an impact assessment

under the IAA—and accordingly, “GCT’s view is that it is not necessary to immediately engage

in the VFPA’s permitting process” [emphasis added]. As asserted before me by GCT, had GCT

resubmitted its PPE as invited to do by the VFPA, the PPE would likely have had to be amended

slightly to reflect the change in legislative structure in place with the repeal of the CEAA and the

enactment of the IAA; however, GCT declined to participate in a process which it felt was

simply being reopened to it by the VFPA for tactical reasons.

[48] The VFPA replied to GCT on October 2, 2019, advising that the impact assessment under

the IAA would be undertaken by an independent external agency and “[a] permitting decision by

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the port authority would only be necessary if the project received approval under the [IAA], and

any resulting report/federal decision would necessarily and substantially inform [the VFPA’s]

permitting process.” The VFPA also asked GCT to confirm whether it was still asserting that the

VFPA would be in a situation of bias at the time it may be called upon to make a permitting

decision in the future, and, if so, to provide submissions on the matter for consideration so that if

the concerns are considered valid, the VFPA could consider “what steps need to be taken to

address those issues well before a decision is required” [October 2, 2019 letter].

[49] On October 8, 2019, GCT replied to the October 2, 2019 letter to advise that it

recognized the effects of the new legislative regime on DP4 and that it was still asserting that the

VFPA is in a situation of bias. GCT did not provide further submissions on the issue of the

VFPA’s purported bias, but advised simply that it would continue with the judicial review

application as filed.

[50] Since then, the parties have continued to move forward with their respective proposals.

As stated, the Review Panel under the CEAA submitted its final report on RBT2 to the Minister

of Environment and Climate Change on March 27, 2020. Having to determine, amongst other

things, whether the VFPA properly conducted an assessment of alternative means for carrying

out RBT2, the Review Panel concluded that the VFPA reasonably eliminated the E1 and W3

options, and although the regulatory context had changed since 2003, the VFPA had reason to

believe that “the potential for environmental effects on critical fish habitat in the intertidal area

had not changed, and the destruction of that critical habitat would potentially not be permitted by

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DFO”. In concluding that the VFPA’s assessment of alternative means of carrying out RBT2 was

appropriate, the Review Panel stated the following:

The Panel cannot ignore the fact that sensitive fish habitat has been

identified on the east side of the causeway and building E1 would

destroy that habitat which may or may not be fully mitigable. The

Panel recognizes that the [VFPA] had continued conversations

with DFO after 2003 and they never altered their position. After

considering all arguments presented by GCT the Panel submits that

GCT is proposing a competing Project, which the Panel has no

mandate to review. The Panel has however, assessed alternative

locations of [RBT2], including E1.

[Emphasis added.]

[51] As stated, although not identical to E1, construction of DP4 is being proposed in the area

where E1 was to be built, an area which was identified by DFO as problematic for development

in 2003. In May 2020, the VFPA sent about 30 letters to various First Nations communities

adjacent to the Roberts Bank facility and thus interested in port development in the area [May

2020 letters], purportedly to answer questions arising from information being disseminated by

GCT, in which the VFPA asserted, amongst other things, the following:

i.

The VFPA has decided to pursue the RBT2 project,

having considered other options including expansion in

the area being proposed for DP4;

ii. The DP4 project was rejected by the VFPA for reasons

which included environmental and competition concerns;

iii. The Review Panel under the CEAA has concluded that

the VFPA’s assessment of alternative means of carrying

out RBT2 was adequate and has supported the VFPA’s

conclusion to locate the proposed new terminal in deeper

waters; and

iv. The VFPA has no plans to pursue development of DP4,

and GCT does not have the ability to pursue an expansion

of its existing facility without VFPA approval.

Page: 30

[52] For its part, and as part of the first step in the impact assessment process under the IAA,

GCT submitted an initial project description for the DP4 project to the Agency in September

2020, with the intention of filing a detailed project description in the fall of 2021.

Procedural history

[53] As stated, on March 28, 2019, GCT served and filed its notice of application for judicial

review of the March 2019 decision; since then, the proceedings have been at times somewhat

spirited. As stated earlier, on September 6, 2019, Mr. Justice Pentney granted GCT’s motion

disqualifying the VFPA’s counsel from acting in relation to the present application for judicial

review (2019 FC 1147), compelling the VFPA to retain new counsel.

[54] In addition, with the enactment of the IAA on August 28, 2019, rendering the DP4

project a Designated Project and the issuance of the September 2019 decision, amongst other

things, GCT sought to amend its notice of application to include the September 2019 decision

along with the March 2019 decision as the decisions for which judicial review was being sought;

GCT also sought permission to file supplemental affidavits in support of such amendments.

[55] The VFPA and the AGC in turn filed motions seeking to strike GCT’s underlying claim.

The VFPA first argued that the rescission of the March 2019 decision by way of the September

2019 decision rendered GCT’s application moot, as GCT is no longer prevented from accessing

the PER Process given that the VFPA specifically advised GCT that it was ready to proceed with

reviewing GCT’s PPE in the September 2019 decision, and that it was GCT that refused to

engage the PER Process; with no application in the pipeline for the VFPA to review, there was

Page: 31

no longer a live issue between the parties and no reason for the Court to exercise its discretion to

hear a matter that had become strictly hypothetical. In addition, the VFPA sought to strike as

premature GCT’s requests seeking a declaration, amongst other things, that the VFPA cannot

conduct a fair and impartial process because of actual bias, as the GCT had refused the invitation

to first put the bias issue before the VFPA, thus not exhausting the required administrative route

and denying the VFPA the opportunity to respond to the issue so as to provide a record for the

Court to review. The port authority also sought to strike the application as a whole, given that the

Court, it was argued, lacks jurisdiction to order the oversight remedy being requested by GCT

and the Minister lacks the authority to oversee the VFPA in its assessment process.

[56] On March 9, 2020, Prothonotary Furlanetto, as she then was, who was acting Case

Management Judge, allowed the various motions in part: GCT was permitted to amend its notice

of application on the grounds that the inclusion of the September 2019 decision “is not an

intention to raise judicial review of an additional decision but rather to indicate a continuing type

of activity that it asserts supports the allegation of bias” (2020 FC 348). In addition, and although

Prothonotary Furlanetto allowed the VFPA’s motions to strike certain aspects of the relief sought

by GCT, she nonetheless dismissed the request to strike other aspects which related to mootness

and prematurity connected to the bias issue; under the test set out in Borowski v Canada

(Attorney General), [1989] 1 SCR 342 [Borowski], the Prothonotary considered that the

allegations of underlying bias with respect to the March 2019 decision remained a live issue even

though the March 2019 decision may itself have been rescinded by the September 2019 decision.

Prothonotary Furlanetto explained that although there was a change in the legislative regime, the

“VFPA’s authority over GCT in respect of the DP4 Project is ongoing. The VFPA exercises

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power over the DP4 Project under the PER Process and the authority granted to it under the

[CMA]. While a change in the environmental regime has been effected by the implementation of

the IAA, there is no change in the gatekeeper role of VFPA in the process”. Citing Michel v

Adams Lake Indian Band Community Panel, 2017 FC 835, Prothonotary Furlanetto determined

that ““[e]ven where a decision is alleged to be moot, the bias underlying the decision may remain

a live issue that can be determined by the Court at its discretion”. As to the prematurity

argument, the Prothonotary found that such a defence could not arise from the VFPA’s own

making in rescinding its March 2019 decision when the live issue—the purported bias of the

VFPA—was tethered to that decision. The Prothonotary, however, made it clear that her decision

was not intended to be a pronouncement of findings with respect to the merits of the case, but

was limited strictly to the issues raised in the motions before her.

[57] On September 11, 2020, GCT filed its amended notice of application for judicial review

with respect of both the March 2019 decision and September 2019 decisions—collectively

referred to as the March and September 2019 decisions, seeking the following relief:

(a) An Order in the nature of certiorari quashing the Decision and

directing that the Minister of Transport (Canada) or an appropriate

delegate of Her Majesty the Queen other than the VFPA, as

determined by this Honourable Court (the “Minister”), oversee the

assessment and permitting activities for the DP4 Project which are

under the jurisdiction of the VFPA pursuant to the Canada Marine

Act, S.C. 1998, c.10 (the “Act”), the Port Authorities Operations

Regulations, SOR/2000-55 enacted under the Act, or such other

process as this Honourable Court determines is appropriate;

(b) Declarations that:

(i) the March 1st Decision was made pursuant to the

VFPA’s actual improper bias;

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(ii) the September 23rd Decision, purportedly rescinding

the March 1st Decision, was made pursuant to improper

motives, and the VFPA’s actual improper bias;

(iii) In the alternative, and if necessary, that the VFPA

created an inescapable situational bias such that, where

VFPA remains the decision maker, GCT has no possible

opportunity of advancing DP4 before an unbiased decision

maker;

(c) deleted;

(d) An Order directing independent oversight of the VFPA’s

administrative, permitting and other powers with respect to the

DP4 Project in relation to:

(i) access for conducting studies, collecting data, and other

works and activities related to the impact assessment and

permitting processes of DP4;

(ii) leasing;

(iii) dredging;

(iv) construction;

(v) transportation activities;

(vi) undertaking offsetting measures; and

(vii) other activities and powers of the VFPA and its

subsidiaries, including those related to port operations,

pursuant to the VFPA’s letters patent.

(e) A Declaration that the VFPA made the Decision relying upon

extraneous and inappropriate considerations resulting from its own

actual bias, thereby exceeding its jurisdiction under the Act. The

VFPA relied upon its own immediate commercial interest in the

Decision and its desire to protect and enhance its own competing

project to fund and build a second terminal at Roberts Bank (the

“RBT2 Project”) – considerations incompatible with its role as a

federal board, commission or other tribunal;

(f) A Declaration that the VFPA has not conducted, and cannot

conduct, a fair and impartial process under the Act and its own

Project and Environmental Review Process (the “PER Process”),

and in accordance with the principles of natural justice and

procedural fairness due to its actual bias;

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(g) A Declaration that the lands affected by the DP4 Project are not

all within the jurisdiction of the VFPA and remain under the

jurisdiction of the Minister of Transport (Canada), or such other

delegate of Her Majesty the Queen as determined by this

Honourable Court;

(h) deleted;

(i) An Order assigning a case management judge or prothonotary

pursuant to Rule 383 of the Federal Courts Rules, SOR/98-106;

(j) An Order expediting the hearing of this Application;

(k) The Costs of this Application; and

(l) Such other relief as counsel may advise and this Court deems

just.

[58] As stated earlier, by requesting that this Court direct the Minister, by way of an order in

mandamus, to oversee the assessment and permitting activities for the DP4 project, GCT is

seeking an alternative assessment process where Transport Canada oversees certain aspects of

the VFPA’s review of the DP4 project and also conducts certain components of the review

process itself. During the hearing, GCT explained that if I were to find bias on the part of the

VFPA—which GCT contends means having a closed mind and a refusal to make a fair and

rational decision based on objective considerations, and instead making a decision based on

predeterminations on the part of the VFPA—the parties, with the assistance of the Court, would

have to sketch out the exact process that will eventually have to be undertaken during the

assessment process of the DP4 project. GCT’s assertion, rightly or wrongly, that it was open to

this Court to fashion a remedy of this kind under the circumstances is supported, it argues, by the

decision of Madam Justice Sharlow, as she then was, in Pushpanathan v Canada (Minister of

Citizenship and Immigration ), [1999] 4 FC 465. I should also mention that during the hearing,

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GCT confirmed that it was no longer pursuing the declaration sought at paragraph 2(g) of the

amended notice of application for judicial review.

[59] The VFPA appealed the Order of Prothonotary Furlanetto, strictly on the mootness and

prematurity issues. On November 17, 2020, Mr. Justice Phelan dismissed the appeal, finding that

the Prothonotary did not commit a palpable and overriding error in her decision (2020 FC 1062).

The VFPA appealed Justice Phelan’s decision, on the prematurity issue alone, to the Federal

Court of Appeal [FCA] which, on September 17, 2021, dismissed the appeal (2021 FCA 183) on

the grounds that it saw no palpable or overriding error in the decision of Justice Phelan. The FCA

also made it clear that its decision was not meant to tie the hands of the judge hearing the matter

on the merits, in the determination of the issues before me.

[60] In addition, following the disclosure under section 317 of the Federal Courts Rules,

SOR/98-106 [Rules], GCT filed a motion seeking further disclosure of the record, primarily on

the basis of the bias allegation. On October 15, 2020, Mr. Justice Pentney dismissed GCT’s

motion seeking an order for leave to cross-examine a senior official of the VFPA in advance of

the hearing of its motion pursuant to subsection 318(2) of the Rules (2020 FC 970), and on June

17, 2021, Justice Pentney granted in part the motion to compel disclosure (2021 FC 624).

[61] That is where matters stood at the commencement of the hearing.

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Legislative framework

[62] I have set out in the annex to my decision the relevant statutory and regulatory

provisions.

[63] By virtue of the enactment in 1998 of the CMA, Parliament relinquished the legislative

means of the federal government to direct or control the actions of port authorities through the

requirement under the Financial Administration Act, RSC 1985, c F-11, that they submit

corporate plans to the Governor in Council. The purpose of enacting the CMA was to consolidate

and simplify maritime regulations, reduce red tape, and shorten the time for commercial

decision-making for, amongst other federal entities, port authorities; the overall goal was to

make Canada’s maritime sector more competitive (British Columbia (Attorney General) v

Lafarge Canada Inc, 2007 SCC 23, [2007] 2 SCR 86 at paras 44 and 45).

[64] As seen from section 4 of the CMA, the legislative framework is designed to ensure that,

in particular, port authorities are managed in a commercially sound and decentralized manner,

for the most part free from the control of the Minister of Transport. The core commercial focus

of the CMA is reflected in its legislative history, with the result that the VFPA is autonomous

and financially sustainable. In fact, one of the conditions for the Minister to issue letters patent

incorporating a port authority is that the Minister is satisfied that the port “is, and is likely to

remain, financially self-sufficient” (CMA s 8(1)(a)).

[65] In the present case, the nature of the CMA is commercial—in fact, it is interesting that

subsection 2(2) of the CMA looks to the Canada Business Corporations Act for greater certainty

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in the interpretation of words and expressions used in the CMA—with its purpose being to, inter

alia, “provide a high degree of autonomy for local and regional management … and be

responsive to local needs and priorities” as well as to “manage the marine infrastructure and

services in a commercial manner that encourages, and takes into account, input from users and

the community in which a port or harbour is located” (CMA ss 4(e) and (f)).

[66] The VFPA’s power to authorize certain activities within the Port of Vancouver derives

from section 28 of the CMA, which specifically authorizes a port authority to “operate” its port

and, subject to the letters patent, to engage in port activities set out in subsection 28(2) of the

CMA. There is no issue that GCT requires the authorization of the VFPA to proceed with DP4.

Moreover, the Regulations do not establish the procedures that must be undertaken for an

applicant to have its project reviewed by the port authority. Rather, the VFPA is empowered to

set up its own procedures for project assessment and review. Its letters patent provide the

following: “To operate the port, the [VFPA] may undertake the port activities referred to in

paragraph 28(2)(a) of the [CMA]” which may include the “development, application,

enforcement and amendment of rules, orders, bylaws, practices or procedures and issuance and

administration of authorizations respecting use, occupancy or operation of the port” [emphasis

added].

[67] A port authority is managed by a board of directors who “shall have generally

acknowledged and accepted stature within the transportation industry or the business

community” (CMA ss 15(1) and (2), and 20). The directors have to “act honestly and in good

faith with a view to the best interests of the port authority” (CMA s 22(1)(a)). The VFPA’s Code

Page: 38

of Conduct (Schedule E to its Letters Patent – Certificate of Amalgamation of Port Authorities

(Department of Transport), PC 2007-1885, art 5.1) [Code of Conduct], governs the conduct of

the directors of the VFPA. However, neither the CMA, nor the Regulations, nor the letters patent

prescribe who, within the VFPA, must make a decision to authorize the building of a new project

(Communities and Coal Society v Canada (Attorney General), 2018 FC 35 at paras 45-46

[Communities and Coal Society]; Carltona Ltd v Commissioners of Works and Others, [1943] 2

All ER 560).

[68] Prior to the introduction of the IAA, the VFPA had environmental assessment powers

under section 67 of CEAA. With the coming into force of the IAA, the VFPA, as a “federal

authority”, can only exercise its authorization powers in accordance with the IAA, and as

mentioned, section 8 of the IAA prohibits the VFPA from acting with respect to a project

proposal until a project is approved under the IAA process. In addition, and quite apart from

approvals under the now repealed CEAA or the new IAA and under a myriad of other federal

legislation and from the Tsawwassen First Nation for activities on their lands or water lots,

authority from DFO would be required under the Fisheries Act, RSC 1985, c F-14, in respect of

projects which may affect fish habitat.

Issues

[69] The present application raises three issues:

1.

Is the present application moot or premature given the rescission of the March

2019 decision and the repeal of the CEAA in favour of the IAA?

Page: 39

2.

3.

Did the VFPA breach the principles of natural justice and procedural fairness by

rendering a decision tainted by impermissible bias?

Does this Court have the jurisdiction to grant the relief sought by GCT?

Standard of review

[70] As regards the second issue, questions of procedural fairness are not decided according to

any particular standard of review; deference has no room in the analysis, and the Court must be

fully and independently satisfied that procedural fairness has been met and that the decision-

making process was fair, having regard to all of the circumstances (Canadian Pacific Railway

Company v Canada (Attorney General), 2018 FCA 69 at para 54 [Canadian Pacific Railway

Company]; Angara v Canada (Citizenship and Immigration), 2021 FC 376 at para 23 [Angara]).

Analysis

A.

Preliminary matter: Is the application for judicial review moot and premature?

[71] The VFPA takes up before me the issues argued before Prothonotary Furlanetto during its

earlier motion to strike and raises mootness and prematurity as preliminary issues. The port

authority argues that the September 2019 decision rescinded the March 2019 decision and that

whether flawed or not, the March 2019 decision no longer prevents GCT from submitting its

PPE for DP4. Consequently, there is no need for an order in the nature of certiorari as the

September 2019 decision already quashed the March 2019 decision. The matter is therefore moot

as there is no practical effect of the relief sought by GCT.

Page: 40

[72] The VFPA also argues that the present application is premature for two reasons; first, and

although invited to do so, GCT refused to make submissions on bias to the VFPA and is

therefore now barred from raising the issue on judicial review. In addition, the VFPA argues that

as the GCT failed to re-engage the PER Process after the September 2019 decision, it does not

have an active application before the VFPA for a permitting decision, and with the repeal of the

CEAA and the enactment of the IAA, the VFPA’s authority to exercise any powers or perform

any duties or functions is curtailed.

[73] Putting aside the issue of res judicata raised by GCT, I must agree with Prothonotary

Furlanetto (2020 FC 348) and with Mr. Justice Phelan (2020 FC 1062), who maintained the

Prothonotary’s decision in refusing to strike GCT’s application: after considering the test set out

in Borowski on the issue of mootness, both Prothonotary Furlanetto and Justice Phelan

determined that the issue of purported bias permeates the entire debate between the parties as

well as their continued relationship in respect of the DP4 project. Mr. Justice Phelan summarized

the bias concerns of GCT in this way: “how can [GCT] receive a fair and unbiased consideration

of its own project in the face of VFPA’s clear preference for its own project?” The fact that the

VFPA may have rescinded its March 2019 decision does not make the bias concerns of GCT go

away, even with the change in legislative landscape.

[74] GCT continues to argue that the VFPA cannot shake the bias shown with the March 2019

decision by making a tactical decision to “rescind” it with the September 2019 decision. In

addition, this is not, as was the case in 0769449 BC Ltd (Kimberly Transport) v Vancouver

Fraser (Port Authority), 2016 FC 645, and Kozel v Canada (Citizenship and Immigration),

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2015 FC 593, cited by the VFPA, a situation whereby the change in the legislation transferred

the power to grant licences to access the Port of Vancouver’s premises from the VFPA to another

administrative body, or a case where the change in the statute resulted in the termination of an

applicant’s legal status. In this case, the statutory change did not transfer any responsibility

relating to permitting from the VFPA to another administrative body; the VFPA still needs to

conduct its review of DP4 under its PER Process with permitting authority regarding the tasks

inherent in the actual construction and operations of the project, although admittedly now only

following review under the IAA. In other words, regardless of the newly enacted IAA, GCT

eventually still required port authority approval to pursue the project. Accordingly, deciding not

to accept the PPE under the PER Process goes to the heart of GCT’s bias claim. Moreover, the

claim of prematurity arises from the purported rescission of the March 2019 decision; however,

if GCT’s bias concerns are valid, such a finding would certainly influence any determination as

to whether the VFPA manipulated the prematurity doctrine with its September 2019 decision to

shield itself from judicial review, and thus “game the system”.

[75] With respect to the issue of exhaustion and the argument that GCT circumvented the

VFPA’s primary jurisdiction by not raising the bias issue first with the VFPA (Chopra v Canada

(Attorney General), 2013 FC 644 at para 66; Lin v Canada (Public Safety and Emergency

Preparedness), 2021 FCA 81 at para 6 [Lin]), I accept the general principle of non-interference

with ongoing administrative processes subject only to exceptional circumstances, and I accept

that concerns regarding procedural fairness or bias are not exceptional circumstances allowing

parties to bypass an administrative process as long as that process allows the issues to be raised

and an effective remedy to be granted (Canada (Border Services Agency) v CB Powell Limited,

Page: 42

2010 FCA 61 at para 33 [CB Powell Limited]). However, as was the case with Prothonotary

Furlanetto, I have not been convinced that there existed an adequate route or process for the

VFPA, as a non-adjudicative tribunal saddled with commercial and operational responsibility for

running the Port of Vancouver, to have considered its own bias, and that informal

correspondence was simply inadequate as a procedure under the circumstances.

[76] I also accept that what was before Prothonotary Furlanetto was a motion where the

threshold for striking a notice of application is higher (David Bull Laboratories (Canada) Inc v

Pharmacia Inc (CA), [1995] 1 FC 588 at 600)—the test for which the VFPA simply did not

meet—and thus the prism through which I should review the issues of mootness and prematurity

is different. However, the fundamental problem remains the same, i.e., GCT’s concerns over bias

have a direct impact upon how these two issues are to be assessed.

[77] Under the circumstances, what remains is very much a live issue between the parties, and

as stated by Prothonotary Furlanetto, “[t]he facts set out in the application raise issues as to the

ability of the port authority to discharge its statutory duty and provide unbiased oversight and as

to its accountability if it cannot do so. These allegations will persist until they are evaluated by

the Court.” I agree, and the situation that existed before Prothonotary Furlanetto and Justice

Phelan—as well as the FCA, although only the issue of prematurity was raised on appeal—

remains today, and as stated by Justice Phelan, it would be wasteful to compel GCT to file a

fresh PPE containing the same basic request for project approval “only to end up in the same

position as at present”; the issue of bias must be addressed.

Page: 43

B.

Did the VFPA breach the principles of natural justice and procedural fairness by

rendering a decision tainted by bias and by breaching GCT’s legitimate expectations

regarding the review of its PPE?

[78] There is no doubt that ““[a]ll administrative bodies, no matter what their function, owe a

duty of fairness to the regulated parties whose interest they must determine” (Newfoundland

Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623

at 636 [Newfoundland Telephone]).

[79] The Court’s assessment of the content of procedural fairness should be guided by the five

non-exhaustive contextual factors set out by the Supreme Court in Baker v Canada (Minister of

Citizenship and Immigration), [1999] 2 SCR 817 [Baker] (Angara at para 23). As stated by

Justice L’Heureux-Dubé, the concept of procedural fairness is flexible and variable as there is no

set rule for what requirements will be applicable in any given case; there are several factors in

the spectrum analysis which are relevant in determining the content of the common law duty of

procedural fairness in a given set of circumstances (Baker at paras 21 and 22). Although not

exhaustive, such factors include (Baker at paras 23 to 28):

i.

the nature of the decision being made and the process

followed in making it;

ii.

iii.

the nature of the statutory scheme and the terms of the

statute pursuant to which the body operates;

the importance of the decision to the individual or

individuals affected—the more important the decision is to

the lives of those affected and the greater its impact on that

person or those persons, the more stringent the procedural

protections that will be mandated;

iv.

the legitimate expectations of the person challenging the

decision;

Page: 44

v.

the choices of procedure made by the agency itself,

particularly when the statute leaves to the decision maker

the ability to choose its own procedures.

[80] In addition, the common law has long recognized that bias on the part of an

administrative decision maker erodes any sense of procedural fairness, which in turn negatively

affects the duty of fairness which applies to all administrative bodies. In Newfoundland

Telephone, the Supreme Court of Canada set out the issue as follows at page 636:

Although the duty of fairness applies to all administrative bodies, the

extent of that duty will depend upon the nature and the function of

the particular tribunal. See Martineau v. Matsqui

Institution Disciplinary Board, [1980] 1 S.C.R. 602. The duty to act

fairly includes the duty to provide procedural fairness to the

parties. That simply cannot exist if an adjudicator is biased. It is, of

course, impossible to determine the precise state of mind of an

adjudicator who has made an administrative board decision. As a

result, the courts have taken the position that an unbiased

appearance is, in itself, an essential component of procedural

fairness. To ensure fairness the conduct of members of

administrative tribunals has been measured against a standard of

reasonable apprehension of bias. The test is whether a reasonably

informed bystander could reasonably perceive bias on the part of

an adjudicator.

[Emphasis added.]

[81] The need for a spectrum or content analysis to establish the scope of the duty of

procedural fairness was also outlined in Newfoundland Telephone, where Justice Cory stated:

It can be seen that there is a great diversity of administrative

boards. Those that are primarily adjudicative in their functions will

be expected to comply with the standard applicable to courts. That

is to say that the conduct of the members of the Board should be

such that there could be no reasonable apprehension of bias with

regard to their decision. At the other end of the scale are boards

with popularly elected members such as those dealing with

planning and development whose members are municipal

councillors. With those boards, the standard will be much more

Page: 45

lenient. In order to disqualify the members a challenging party

must establish that there has been a pre-judgment of the matter to

such an extent that any representations to the contrary would be

futile. Administrative boards that deal with matters of policy will

be closely comparable to the boards composed of municipal

councillors. For those boards, a strict application of a reasonable

apprehension of bias as a test might undermine the very role which

has been entrusted to them by the legislature.

[Emphasis added.]

[82] In Old St Boniface Residents Assn Inc v Winnipeg (City), [1990] 3 SCR 1170 [Old St

Boniface], the Supreme Court stated that “[t]he rules which require a tribunal to maintain an

open mind and to be free of bias, actual or perceived, are part of the audi alteram partem

principle which applies to decision-makers” (Old St Boniface at p 1190). In addition, Justice

Sopinka set out the standard for the determination of whether a closed mind exists at page 1197:

In my opinion, the test that is consistent with the functions of a

municipal councillor and enables him or her to carry out the

political and legislative duties entrusted to the councillor is one

which requires that the objectors or supporters be heard by

members of Council who are capable of being persuaded. The

Legislature could not have intended to have a hearing before a

body who has already made a decision which is irreversible. The

party alleging disqualifying bias must establish that there is a

prejudgment of the matter, in fact, to the extent that any

representations at variance with the view, which has been adopted,

would be futile. Statements by individual members of Council

while they may very well give rise to an appearance of bias will

not satisfy the test unless the court concludes that they are the

expression of a final opinion on the matter, which cannot be

dislodged. In this regard it is important to keep in mind that

support in favour of a measure before a committee and a vote in

favour will not constitute disqualifying bias in the absence of some

indication that the position taken is incapable of change. The

contrary conclusion would result in the disqualification of a

majority of Council in respect of all matters that are decided at

public meetings at which objectors are entitled to be heard.

[Emphasis added.]

Page: 46

[83] In other words, in line with the spectrum analysis relating to the content of the scope of

procedural fairness, a certain level of pre-judgment of decision makers is to be expected in

certain circumstances, as long as it does not equate to intransigence—a closing of the mind to the

point of no longer being able to be otherwise persuaded.

[84] In Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General),

2015 SCC 25 [Yukon Francophone School Board], the Supreme Court of Canada noted that the

objective of the reasonable apprehension of bias test “is to ensure not only the reality, but the

appearance of a fair adjudicative process” and that the issue of bias is thus “inextricably linked to

the need for impartiality” (at para 22). In particular, as regards the judiciary, suspicions,

speculations or the possibilities of bias is not enough. The test for a reasonable apprehension of

bias requires a “real likelihood or probability of bias” (Yukon Francophone School Board at para

25, citing Arsenault-Cameron v Prince Edward Island, [1999] 3 SCR 851).

[85] That said, and as instructed in Baker, one must also look to the statutory scheme which is

the source of the decision maker’s legitimacy in determining the content of the duty of fairness

owed when a particular administrative decision is made (Baker at para 24). Thus, in assessing the

issue of bias, courts must also take into account the particular process at hand:

In administrative law the question is not simply whether an

administrative decision-maker has a bias. It is also whether any

bias which the decision-maker has is authorized by law. This is an

important distinction to make. To fail to take this into account will

result in improper pigeon holing of administrative processes where

individual administrative schemes are judged according to general

standards rather than the standards appropriate to the particular

process at hand.

[Emphasis added.]

Page: 47

(Robert W. MaCaulay & James L.H. Sprague, Hearings Before

Administrative Tribunals, 5th ed (Toronto: Thomson Reuteurs.

2016) at p 39-5 – 39-6.)

[86] As stated by the Supreme Court of Canada in Ocean Port Hotel Ltd v British Columbia

(General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at paras 20, 22 and 42

[Ocean Port Hotel]:

[20] … It is well established that, absent constitutional constraints,

the degree of independence required of a particular government

decision maker or tribunal is determined by its enabling statute. It

is the legislature or Parliament that determines the degree of

independence required of tribunal members. The statute must be

construed as a whole to determine the degree of independence the

legislature intended.

…

[22] However, like all principles of natural justice, the degree of

independence required of tribunal members may be ousted by

express statutory language or necessary implication. …

…

[42] Further, absent constitutional constraints, it is always open to

the legislature to authorize an overlapping of functions that would

otherwise contravene the rule against bias. …

[Emphasis added.]

[87] Given the parameters of the CMA, I find that in its regulatory, decision-making role, the

VFPA falls, as set out in Newfoundland Telephone, “[a]t the other end of the scale” where “the

standard [for procedural fairness] will be much more lenient” and where in order to challenge a

decision for reasons of bias, GCT must establish “that there has been a pre-judgment of the

matter to such an extent that any representations to the contrary would be futile” (Newfoundland

Telephone at p 638; Old St Boniface at p 1197).

Page: 48

[88] That said, Parliament can authorize an overlapping of functions that would otherwise run

afoul of the rule against bias at common law. As stated by the Supreme Court in Brosseau v

Alberta Securities Commission, [1989] 1 SCR 301 at page 310 [Brosseau]:

Administrative tribunals are created for a variety of reasons and to

respond to a variety of needs. In establishing such tribunals, the

legislator is free to choose the structure of the administrative

body. The legislator will determine, among other things, its

composition and the particular degrees of formality required in its

operation. In some cases, the legislator will determine that it is

desirable, in achieving the ends of the statute, to allow for an

overlap of functions which in normal judicial proceedings would

be kept separate. In assessing the activities of administrative

tribunals, the courts must be sensitive to the nature of the body

created by the legislator. If a certain degree of overlapping of

functions is authorized by statute, then, to the extent that it is

authorized, it will not generally be subject to the doctrine of

“reasonable apprehension of bias” per se.

[Emphasis added.]

[89] GCT asserts that the matter under the present application for judicial review is not one

regarding any permissible structural bias by virtue of the VFPA’s overlapping statutory roles—to

which, it argues, the decision in Ocean Port Hotel would apply—but rather one of actual bias,

where the decision maker has a closed mind and a direct interest in the matter in the way in

which it dealt with the DP4 project. GCT argues that the VFPA’s “dogged pursuit of its

competing project” has undermined its ability to objectively evaluate the DP4 project. In short,

GCT asserts that the VFPA, as landlord, regulator and proponent, has closed its mind and cannot

fairly review the DP4 project and that therefore any review of its project cannot continue under

the existing structure on the grounds of actual bias, or at least a reasonable apprehension of bias.

Page: 49

[90] The AGC made no submissions on the issue of bias. Regarding the issue of possible

structural bias, the VFPA argues that nothing in the CMA, the letters patent or the governing

regulations obliges the VFPA to have regulated activities within the Port of Vancouver carried

out by third-party operators or to defer to third-party operators the long-term operational and

management objectives set by the VFPA. It asserts that the decision-making structure in place is

determined by the governing legislation and consequently, absent constitutional constraints, it

was open to Parliament to authorize an overlapping of functions that would otherwise contravene

the rule against bias. Accordingly, argues the VFPA, even where the plurality of functions

prescribed to a port authority under the CMA “would otherwise offend the rule against bias, it

may well be that this structure was authorized by the [CMA] at the relevant time” (Ocean Port

Hotel at paras 42 and 43) and that therefore the relevant statutory scheme of the CMA ousts the

common law duty of procedural fairness in this case (Ocean Port Hotel at paras 20, 22 and 42;

Democracy Watch v Canada (Attorney General), 2018 FC 1290 at paras 5, 128).

[91] I agree with the VFPA on the structural bias issue. GCT defines bias as meaning a closed

mind and a refusal to make a fair and rational decision based on objective evidence-based

considerations, and instead making a decision based on predeterminations on the part of the

VFPA. However, similar to the case in Old St Boniface, where there are, as here, statutorily

created overlapping functions of the decision maker, including both a commercial and regulatory

role, I would think that it is to be expected that “some degree of pre-judgment is inherent” in the

decision-making process (Old St Boniface at p 1196). Throughout its submissions before me, GCT

skilfully tried to tiptoe around the 6-ton elephant in the room, to wit, that the VFPA has been set

up as a commercially driven, financially sustainable, non-adjudicative decision maker, and it

Page: 50

never properly addressed at what point on the spectrum analysis of procedural fairness did the

VFPA, in its conduct or failings, cross the Rubicon from permissible, structural bias to the

domain of impermissible bias; GCT only asserted that the indicia of bias it claimed to highlight

were evidence of actual bias.

[92] The legislative scheme created by Parliament explicitly tasks the VFPA with overlapping

functions: the VFPA is the commercial operator of the Port of Vancouver, a functioning,

operational port authority focused on running the Port of Vancouver in accordance with the port

activities as set out in section 28 of the CMA by managing, occupying and holding port property.

At the same time, the VFPA acts as a regulator tasked, inter alia, with developing a land use plan

that may regulate the use of the property it manages, holds and occupies, and with authorizing

certain activities within the port (subsections 28(1), 44(2), and 44(6) and sections 45 and 48 of

the CMA; sections 20 to 28 of the Regulations; article 3.2 of the letters patent). The

determination of the level of impartiality that is expected of the decision maker is rooted in the

statute that created it, and in the case of the CMA, it is a balance struck by Parliament as between

competing interests: on the one hand, what is normally expected of a completely independent

adjudicative decision maker, and on the other, the unbridled independence required in decision-

making and commitment to long-term strategic planning so as develop and run a commercially

sustainable port operation. The VFPA is free either to operate the terminals within the port itself

or to lease the property to third-party commercial operators such as GCT. In short, by enacting

the CMA legislative scheme, Parliament chose to vest the VFPA with all these roles, roles which

cannot be parsed into separate silos.

Page: 51

[93] Accordingly, I am mindful that throughout the decision-making process, a certain level of

pre-judgment is to be expected from the VFPA executives, who are primarily business-minded

individuals tasked with making decisions in the exercise of long-term and ongoing

developmental planning for the Port of Vancouver—such “bias” would be structural, and a

consequence of the VFPA’s plurality of operational and statutory functions; I should mention

that GCT never truly took issue with what may be some level of permitted structural bias on the

part of the VFPA executives, and I will consider GCT’s arguments of actual bias through this

prism.

[94] I should also mention that the VFPA has the discretion to refuse to authorize activities

that are inconsistent with its long-term development plans and, in its reasonable opinion, the

commercial interests of the Port of Vancouver. GCT argues that the full economic risk of RBT2

resides for the moment with the VFPA. That may be true, however, although RBT2 is being

developed by the VFPA as project proponent, which is normally the case for large new

infrastructure development projects, the evidence suggests that it is the intention of the VFPA to

find, through an ongoing request for proposal (RFP) process, a third-party commercial tenant for

RBT2 to operate the new terminal, and in fact, as mentioned, GCT had applied to be the terminal

operator for RBT2. I do not accept GCT’s argument before me that the fact that the full

economic risk for RBT2 presently rests with the VFPA goes to the issue of its bias. It may be

that under optimal circumstances, one would expect to have an operator, a lease and some

operational structure already in place in advance of construction; however, the process to secure

a third-party commercial operator for RBT2 continues for the VFPA, and I see nothing to

suggest that one may not be found prior to the start of construction on RBT2, even assuming that

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confirmation by that time of a third-party terminal operator being in place is even necessary. In

any event, there is no indication that, throughout its dealings with GCT in relation to the DP4

project, the VFPA acted in any capacity that was not otherwise permitted under the governing

legislation or its letters patent. Even if it can be argued that the overlapping functional structure

under the CMA creates a reasonable apprehension of bias when port authorities are undertaking

their regulatory role, it was open to Parliament to set up port authorities as it did under the CMA.

[95] That said, the Supreme Court in Brosseau did not close the door to a finding of actual

bias where there is a plurality of functions undertaken by the decision maker; in other words, a

statutorily-created overlapping structure is not a hall pass for actual bias. The fact that Parliament

has created an overlapping structure which, itself, may support independence and the existence

of some level of structural bias on the part of the decision maker does not shield the statutory

decision maker from a finding of impermissible bias in its decision-making process. I use the

expression “impermissible bias” because I recognize that the CMA, by creating overlapping

roles for port authorities—where they are mandated to commercially run their ports in a

financially sustainable fashion, act as proponents on major work projects, and manage external

communication and outreach with stakeholders—can only be interpreted as tolerating a lesser

degree of impartiality in its regulatory function as compared with a traditional, adjudicative

decision maker whose role it is to act as arbiter between two competing positions. As stated by

the Supreme Court in Ocean Port Hotel, “the degree of independence required of a particular

government decision maker or tribunal is determined by its enabling statute”, which “must be

construed as a whole to determine the degree of independence the legislature intended” (Ocean

Port Hotel at para 20). GCT is not arguing otherwise, but states simply that the VFPA was

Page: 53

actually biased—acting even below any permissible lower degree of independence or

permissible bias that Parliament may have permitted with the enactment of the CMA.

[96] GCT argues that the VFPA never considered its PPE, which was submitted on

February 5, 2019, because the VFPA, as a conflicted regulator, let its penchant for its own

project cloud and displace its regulatory obligations. In a case of overlapping functions such as

the powers vested in the VFPA by the CMA, I suspect that the port authority will always be

somehow conflicted to a certain extent when performing its regulatory role given that it performs

such a role with the baggage of also being the port operator, including having to consider its

long-term plans for port development. I would think that this is what the parties refer to as

structural bias, i.e., the displacement of the common law principles of procedural fairness that

have been created by statute and permitted under Brosseau. However, what was stated by the

Supreme Court in Brosseau was that where a decision maker is undertaking overlapping

functions to the extent that they are authorized under statute, it will not generally be subject to

the doctrine of reasonable apprehension of bias per se. It seems to me therefore that legislative

construct alone will not in all cases shield a decision maker from a finding of actual,

impermissible bias when undertaking overlapping functions. In other words, although the VFPA

is a regulator with an acceptable preference, it cannot allow that preference to cloud and displace

its regulatory obligations, in particular the need for respect for a degree of natural justice and

procedural fairness called for under the circumstances.

[97] It therefore becomes necessary to consider the indicia which GCT asserts demonstrates

actual, impermissible bias, or at the very least is evidence of a reasonable apprehension of bias in

Page: 54

the decision-making process apart from the structural allowances, on the part of the VFPA. GCT

argues that the indicia of bias on the part of the VFPA is clear and that in any event, the VFPA

otherwise breached the principles of natural justice and procedural fairness by refusing to act in

accordance with GCT’s legitimate expectations in not processing its PPE in accordance with the

PER Process and the Guide. The VFPA takes issue with what GCT calls the indicia of bias,

asserting that such “indicia” pointed to by GCT do not in any way establish, or even suggest,

bias on its part.

(1)

Has the VFPA demonstrated impermissible bias by closing its mind to the DP4

project?

[98] As summarized by Mr. Justice Pentney in his Order of June 17, 2021, “the core of GCT’s

Amended Notice of Application for Judicial Review is its claim that VFPA’s actual bias against

GCT is evident from the decision letters regarding both the refusal to consider its project

proposal in March 2019, as well as the subsequent rescission in September 2019.” In particular,

GCT sets out a series of primary facts which, it argues, are elements which demonstrate the

VFPA’s actual bias, as well as the desire to stonewall and undermine any objective consideration

of DP4 culminating in the March 2019 decision, and that such bias renders void everything

thereafter which the VFPA may have done in an attempt to right the ship, in particular, by

issuing the September 2019 decision.

[99] The elements of actual bias raised by GCT are, it argues, reflected in the March and

September 2019 decisions themselves, the manner in which those decisions were orchestrated,

and the declared preference of RBT2 over DP4 by the VFPA. I will deal with GCT’s arguments

in relation to each of the identified indicia of bias on the part of the VFPA.

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(a)

Were the March and September 2019 decisions, the manner in which they

were made and the statements made therein, reflective of an actual bias or

even a reasonable apprehension of bias on the part of the VFPA?

[100] From a timing perspective, there is no evidence that GCT considered the VFPA to be

biased against the DP4 project prior to the March 2019 decision. Before me, GCT conceded that

the closest the evidence came on that issue was to be found in the cross-examination of

Mr. Doron Grosman, President and CEO of GCT, where Mr. Grosman stated that GCT was

aware that a “myriad of factors” would have to be considered by the VFPA upon receipt of the

PPE.

[101] In the March 2019 decision—what GCT calls the initial declaration of bias—the VFPA

set out the context and history of container terminal expansion in the Port of Vancouver, and in

particular at Deltaport, and the fact that RBT2 has been in the planning stages since 2013. The

port authority underscored that it plans for additional capacity to be built on the west side of the

existing terminal, in deeper waters, as it was encouraged to do by DFO in 2003, and noted that

the updated project rationale for RBT2, filed in 2018, emphasized that (1) DFO prohibited

further land reclamation inland from Deltaport, and (2) healthy competition within the port

would be encouraged. As to the earlier environmental studies, the VFPA reiterated that one of

the driving factors in the eventual recommendation of DP3, which became operational in 2010,

was the reduced footprint of the project, which minimized the potential effects on existing fish

and wildlife habitat. Accordingly, the VFPA confirmed that its preferred project for capacity

expansion to meet increased demand was RBT2. Although the VFPA decided not to proceed

with reviewing GCT’s PPE for DP4 at that time, in particular, because the proposed development

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timeline for DP4 would conflict with the implementation of RBT2 capacity, it did not shut the

door to future consideration of DP4 as a subsequent and incremental project.

[102] GCT submits that the VFPA’s stated rationale for the March 2019 decision is baseless as

it relies on what GCT calls a mischaracterization by the VFPA of the 2003 DFO letters and on

vaguely framed competition concerns. The essence of GCT’s argument is that such stated

rationale, the tactical way the decisions were orchestrated and the fact that the VFPA stated that

RBT2 was its preferred project without first conducting a formal review of DP4 can only lead to

a conclusion that the VFPA was biased in its decision-making process in relation to DP4. I will

now deal with each of those issues.

(i)

Stated rationale

[103] GCT argues that the statements contained in the March 2019 decision in support of the

decision to refuse to even consider the PPE, in particular regarding the effect of the 2003 DFO

letters and regarding its competition concerns, demonstrate both a closed mind to exercising

objective statutory decision-making regarding DP4 and an intention to mischaracterize and

embellish facts to justify the VFPA’s closed mind.

1.

The notion of prohibition

[104] As a first rationale, the March 2019 decision provides the following:

At Roberts Bank, expanding the existing Deltaport container

terminal is not an option for two main reasons. First, [DFO] has

prohibited further land reclamation inland from Deltaport, due to

environmental sensitivity. The graphic below shows how further

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expansion at Deltaport would have to be built almost entirely in the

sensitive intertidal habitat within the inter-causeway area.

[Emphasis added.]

[105] As regards the 2003 DFO letters, GCT argues that the VFPA knew that the claim that it

posted on the updated Project Rationale for the RBT2 project and that it outlined in the March

2019 decision that DFO had prohibited land reclamation inland of Deltaport—the proposed area

for the DP4 project—was simply not true and that such a claim is further evidence of its bias

against DP4. To understand GCT’s position, a little context is needed.

[106] As mentioned earlier, the VFPA-sponsored T2 project was put on hold in 2006 in favour

of the scaled down version of the DP3 project, which was completed; however, the project

eventually to become RBT2 remained as a possible consideration for future expansion after the

completion of DP3. With the DP3 project becoming operational in January 2010, the VFPA

turned its mind back to the development of a new terminal at Roberts Bank—preferring to

develop in deeper waters, to the west of the causeway, as recommended by DFO in 2003. Having

moved the project forward sufficiently, the VFPA entered the review process for RBT2 in 2013

and proceeded to file its EIS for federal review in March 2015.

[107] Around the same time, GCT began discussing the development of DP4 with the port

authority. Given the VFPA’s role as project proponent for RBT2 and its concurrent role as

regulatory gatekeeper for the DP4 project, the requirement to ensure transparency and objectivity

for DP4 was directed by the VFPA’s board of directors during a board meeting held on

March 31, 2015, at which the VFPA executives were also in attendance. Following a PowerPoint

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presentation of GCT’s proposed expansion at Deltaport given by the one of the VFPA executives

to the VFPA board of directors, as well as a summary of the VFPA management’s preliminary

assessment of GCT’s proposal, the board noted that it was critical that GCT’s proposal be

evaluated by the VFPA with “an open mind”—echoing the requirements of the PER Process and

the port authority’s statutory obligations.

[108] In January 2017, GCT made a detailed presentation to the VFPA of the proposed DP4

project, including the business case for moving its project forward rather than RBT2 because,

according to GCT, the DP4 project is the most competitive, cost-effective way to address

growing container demand on the West Coast of Canada. It seems clear that at this point, GCT

saw the RBT2 project moving forward, with the prospect of a new terminal operator eating into

the existing share of the container market at the Port of Vancouver. Following the presentation,

the VFPA raised various environmental issues, in particular those addressed in the 2003 DFO

letters, which would make DP4 a challenge to be approved. The matter culminated in the port

authority retaining Hemmera, as outlined earlier. The non-disclosure agreement between GCT

and the VFPA in relation to the Hemmera Report, which was delivered in November 2017,

expired in May 2019, allowing GCT to present that report to the Review Panel set up under the

CEAA for the purpose of reviewing RBT2. As stated, although the Hemmera Report does not

squarely address the issue of whether the 2003 DFO letters constituted a prohibition of

development in the area at the time, the report—with the hindsight of the regulatory changes and

advances in scientific understanding over the previous 14 years—did manage to set out eight

mitigating factors to consider should a proponent seek to develop the area of the proposed DP4

project; in fact, the completion of DP3 is testament to the fact that development east of the

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causeway, to the landward side, is possible with, as was the case with DP3, mitigating steps

taken to address environmental concerns, including building in offsets for lost fish and wildlife

habitat to the satisfaction of regulators, and building a smaller footprint than initially proposed.

However, we should also keep in mind that the Hemmera Report also made it clear that it “draws

no conclusion related to the potential likelihood of attaining approvals and authorizations for

project(s) along the East Causeway of Deltaport.”

[109] With the Hemmera Report in hand, as stated earlier, with the February 2, 2018 letter, the

VFPA wrote to GCT confirming the terminal operator’s right to apply to have DP4 reviewed

under the PER Process and stated that, however, “having regard to the history of environmental

issues associated with the eastern side of the causeway, any proponent of such a project should

expect significant environmental assessment requirements. … [and that] even if the previously

identified environmental issues associated with such a project proved to be mitigable to some

extent, those impacts would have to be considered in a cumulative context with [RBT2].” The

VFPA went on to state that “given the multifaceted role of VFPA as discussed above, we believe

it would be entirely appropriate and indeed incumbent upon VFPA to also consider the impacts

of a DP4 project on the overall port operations. VFPA would also consider the issue of timing,

recognizing the very significant lead times required for such projects, and the looming need for

more near term capacity in the Port of Vancouver.” (Emphasis added).

[110] GCT states that the upshot of the February 2, 2018 letter is that the VFPA is confirming

that it will consider the project if GCT wishes to propose it, given the concerns expressed, and

also that there will be environmental assessments that the parties will have to work through in

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order to get to an evidence-based objective conclusion about the environmental impacts. In

addition, GCT reads the letter as indicating that it is incumbent on the VFPA to consider DP4 in

connection with the impact on the overall port operations—which I take to include how the

VFPA sees port development and operations moving forward and the policy decisions made by

the port authority in relation thereto—and that due process will be followed and objective

considerations will be made in coming to a final decision on whether DP4 moves forward.

[111] It seems to me that the February 2, 2018 letter was tantamount to a pre-emptive

procedural fairness letter, meant to make clear the concerns of the port authority if called upon to

act in its regulatory capacity should GCT trigger the PER Process—I deal with this issue further

below—and provide GCT with some insight on the considerations the port authority would deem

important in the assessment of DP4. GCT states that I am reading too much into the letter, that

the Review Panel hearings had not yet commenced and that whether or not RBT2 would ever see

the light of day was still an open question. That may be so, and I accept that RBT2 was not at

that point a fait accompli, but the fact remains that the VFPA entered the environmental

assessment process with RBT2 in September 2013 and had already submitted its EIS regarding

the RBT2 project for federal review in March 2015, about three years earlier; GCT was still in

the planning stages for DP4. I think that it is safe to say that when the VFPA mentioned that DP4

would need to be looked at in the context of overall port operations and that the issue of timing

would also need to be taken into consideration (recognizing the very significant lead times

required for such projects and the looming need for more near-term capacity in the port), the fact

that RBT2 was already well ahead of DP4 in the regulatory pipeline should have been expected

to be an important element in the eventual assessment decision of the port authority.

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[112] A year later, on February 5, 2019, GCT formally submitted its PPE through the PER

Process portal, which was met with the March 2019 decision, which GCT argues is an

unequivocal declaration of a closed mind and actual bias as it was made clear that the motivation

behind refusing to allow DP4 into the regulatory gate and therefore precluding it from any

objective consideration on the merits, is that RBT2 is the VFPA’s preferred project. With the

March 2019 decision, GCT argues that the VFPA is cross-contaminating its two competing roles,

the first as a proponent for a project, and the second as the regulator, and as stated earlier,

although it may have properly reached the decision at some point that RBT2 was to be the

preferred project, it was necessary that such a decision be reached only after a fair, independent,

objective, evidence-based decision-making process was undertaken so that such a decision could

be made on its merits. From GCT’s perspective, any decision by the VFPA that its preferred

project was to be RBT2 was arrived at through an opaque decision–making process without

justification or transparency, and thus, an indicium of impermissible bias.

[113] GCT points to the Hemmera Report as well as to confirmation from the DFO witnesses

themselves during the Review Panel hearings to argue that the 2003 DFO letters were not meant

to constitute a prohibition against future development of the area proposed for DP4. GCT adds

that, in fact, the VFPA was actually aware that no prohibition existed and GCT points to the

speaking notes of Duncan Wilson, Vice-President of Environment, Community and Government

Affairs [Mr. Wilson’s speaking notes], prepared with the view of reporting on the status of the

RBT2 project during a meeting of the VFPA board on March 21, 2018. In addressing the issue of

support and opposition to RBT2, Mr. Wilson’s speaking notes show what Mr. Wilson called

“one minor, but important, change to my section.” The passage reads as follows:

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GCT has conducted a quieter, more focused campaign against

RBT2, since RBT2 would create additional competition for them.

They have repeatedly claimed that further expansion of Deltaport

(i.e. DP4) could provide required capacity in a more economic and

environmentally friendly manner. And as we have mentioned,

GCT’s proposal is likely unapprovable from an environmental

perspective, results in comsolidation [sic] of market control and

has not entered any regulatory process.

[Emphasis added.]

[114] I have underlined the reference to the VFPA’s concern over the concentration of market

share and the fact that DP4 had not ever entered the regulatory process at that time, issues that I

will come back to later. For now, in the amended version of Mr. Wilson’s speaking notes, the

words “likely unapprovable from an environmental perspective” were changed to “located in an

area that has been rejected by DFO in the past (high value shallow-intertidal habitat)”. GCT

argues that not only did Mr. Wilson avoid the use of the word “prohibited” in the first draft

(choosing simply to say that DP4 was “likely unapprovable”), but he also shifted further away

form the concept of prohibition in the amended draft, electing to say only that the location was in

an area “rejected by DFO in the past”. This, says GCT, is clear confirmation of the mindset of

the VFPA executive, and when the VFPA echoed the statement in its March 2019 decision that

development in the area of the proposed DP4 project was “prohibited”, the port authority knew it

to be an untruth, thereby revealing its impermissible bias against DP4.

[115] I accept that the use of the word “prohibition” outlined in the March 2019 decision is

confusing. However, I am not convinced that the term was used by the VFPA in bad faith so as

to mislead GCT into thinking that such a prohibition existed. I may have thought otherwise if

GCT had not had a copy of the Hemmera Report in hand, but it did, and the VFPA knew that it

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did. Consequently, this is not a case where the VFPA tried to mislead GCT with information

only the VFPA had in hand; GCT was able to come to its own independent conclusions as to

what the report said or did not say about the intent of the 2003 DFO letters. What is clear is that

the Hemmera Report does not squarely address whether the 2003 DFO letters constitute a

prohibition against development in the area proposed for DP4—GCT itself conceded before me

that one must read into the report that the experts consider that the 2003 DFO letters do not

constitute such a prohibition. Also, I think it important to point out that confirmation from DFO

that the 2003 DFO letters did not constitute a prohibition against future development in the area

was only obtained in testimony during the Review Panel hearings in May and June 2019.

[116] GCT also points to the March 25, 2019 draft, and although the letter was never sent, GCT

argues that the port authority seemed to be asking a leading question so as to extract from DFO

an ex post facto justification for its claim that DFO prohibited further development of the area

where DP4 is now proposed. The March 25, 2019 draft provides:

The [VFPA] has recently had an inquiry from a proponent

interested in expanding a Roberts Bank port terminal by reclaiming

land east of the existing terminals as shown below:

The port authority is of the opinion that no further terminal

expansion can be done in the area indicated, as directed by DFO to

the port authority in the 1970s and in 2003. However, the

proponent has stated that changes to both the existing Fisheries Act

and proposed amendments (Bill C-68) have made the earlier

direction obsolete.

In a letter dated April 1, 2003 (enclosed), the [VFPA] was advised

by [DFO] that: DFO will not be involved in any review of the

Delta Port proposal as the only option proposed for that project

results in the destruction of critical fish habitat on the east side of

the causeway … .

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In a letter dated on or about July 29, 2003 (enclosed), the then

minister of fisheries wrote “DFO staff has clearly identified the

unacceptable impacts to critical fish habitat that would occur … .

Therefore, the port authority requests confirmation from DFO that

its earlier direction still stands, and that no terminal expansion on

the east side of the causeway will be permitted.

[117] Certainly the March 25, 2019 draft may reasonably be read along the lines of GCT’s

interpretation, but it may also reasonably be read as an honest reflection of how the VFPA had

understood the 2003 DFO letters, and given GCT’s push-back and assertion “that changes to

both the existing Fisheries Act and proposed amendments (Bill C-68) have made the earlier

direction obsolete”, the VFPA was seeking to know whether its initial assessment of the 2003

DFO letters was correct. In fact, during his cross-examination, Mr. Xotta confirmed as much,

testifying that the assertion that the 2003 DFO letters constituted a “prohibition” against

development in the area of the proposed DP4 project was something “that VFPA believed to be

accurate at that time”. No specific reason was given as to why the letter was never sent other

than Mr. Xotta, on cross-examination, saying that the decision not to send the letter was taken

“around the time other things were unfolding and, for whatever reason, [VFPA executives]

determined that it would not be advisable to send this letter.” GCT suggests that the March 25,

2019 draft was not sent because a few days later, GCT instituted the present application for

judicial review and the VFPA simply did not want to know the answer. That said, I find that

GCT also did not seriously press Mr. Xotta during cross-examination to ascertain the reason for

the letter not having been sent; maybe GCT did not want to know the answer either. The game of

cat and mouse continues!

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[118] In any event, I am not prepared to imply bad faith on the part of the VFPA, and I rather

chalk up what was confirmed afterwards by DFO as being an imprecise use of the word

“prohibit” to a misunderstanding on its part. I note that after receiving the March 2019 decision,

GCT, rather than pointing out to the VFPA what would seem to be an error in the VFPA’s

characterization of the 2003 DFO letters, instituted the present judicial review application, as

was its right; in addition, DFO testimony during the Review Panel hearings confirming that no

such prohibition was intended in the 2003 DFO letters was a factor mentioned by the VFPA in

the September 2019 decision in deciding to rescind the March 2019 decision.

2.

The competition concerns

[119] As a second rationale, the March 2019 decision provides the following:

Second, expanding Deltaport would mean one terminal operator

would control a significant majority of the market for container

terminal services. Healthy competition is necessary to ensure users

continue to pay reasonable rates for reliable service. For this

reason, the [VFPA] is committed to fostering an appropriate level

of competition within the Port of Vancouver. This competitive

environment is especially relevant for Canadian exporters who rely

on the Vancouver gateway.

[Emphasis added.]

[120] In the December 2017 Briefing Note, the VFPA highlighted the need for market

competition within the Port of Vancouver, and stated:

It is of utmost importance to the [VFPA] that fair and appropriate

competition be promoted and maintained among container terminal

operators within the Port of Vancouver and that any dominance

over container handling operations be avoided. Ongoing control by

a single operator of more than 60 per cent of the container capacity

within the Port of Vancouver has proven to be detrimental to

customers of the gateway. This view was confirmed by market

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sounding and reflects the Competition Bureau’s position that looks

negatively on existing incumbents expanding to control markets.

Allowing the new terminal to be run by one of the two existing

operators without relinquishing some facilities would create a

near-monopoly in container terminal services of as much as

80 per cent, which would be unhealthy for the supply chain

marketplace. Typically, major ports around the world operate with

at least three competitive container terminals, which we agree is

best for Canada’s trade competitiveness.

Consistent with this approach, no concessions or agreements will

be granted for the [RBT2] Project that would result in an operator

having more than 60 per cent of the container handling capacity

within the Port of Vancouver. For this reason, the operators of

RBT2 and Deltaport will necessarily be entirely independent from

each other.

Existing Port of Vancouver container terminal operators were not

precluded from participating in the terminal operator procurement

process [for RBT2], but were required to clearly demonstrate, to

the satisfaction of the port authority, the manner in which the

participant would ensure fair competition would be maintained and

confirm that its total container handling capacity within the Port of

Vancouver would not exceed 60 per cent of the total available

capacity.

[Emphasis added.]

[121] GCT admits being aware of the VFPA’s competition concerns as far back as 2017.

According to GCT, in the lead-up to the January 2019 pre-PPE meeting for DP4, there was an

ongoing dialogue regarding the development of the project, and GCT was trying to bring the

VFPA over to its way of thinking. This ongoing dialogue, in particular as it regarded the issue of

market concentration, prompted GCT, on December 8, 2017, to make a presentation to the

VFPA, which included GCT’s perspective on how competition should be measured and assessed

and in which GCT asserted that looking at the issue of competition from its perspective, DP4 is

actually good for consumers; as expressed by GCT before me, GCT educated the VFPA on

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understanding the Herfindahl-Hirschman Index [the HHI], described as a commonly accepted

measure of market concentration and competition. The VFPA’s concerns over market

concentration were also expressed by its executive to the VFPA board in March 2018, as seen

from Mr. Wilson’s speaking notes.

[122] As to having undertaken its own analysis of the competitive factors at play, on cross-

examination, Mr. Xotta indicated that from time to time, the VFPA would undertake an analysis

of the container market, including expertise on pricing, demand and forecasting, and that such

material was filed as part of the port authority’s RBT2 application under the CEAA; however,

Mr. Xotta conceded that as part of the record before the Court on the present application for

judicial review, there is no pricing analysis or report undertaken by an outside expert on

competition matters. Mr. Xotta also testified that the CMA imposes an obligation on port

authorities to consider the interests of the port in its commercial operations, and from time to

time, the port authority would have disagreements with tenants on various issues, including the

degree of market share the tenant should have going forward. However, Mr. Xotta conceded that

there was no formal written competition policy applicable at the time the March 2019 decision

was made setting out the extent of market share that would be appropriate for a single terminal

operator within the Port of Vancouver.

[123] In addition to there being no evidence before the Court of any analysis which could have

informed the VFPA’s assertions or rationale regarding its competition concerns, GCT adds that

rather than seeking outside professional advice regarding the impact that DP4 would have on

competition, the VFPA had undertaken an in-house study using what the GCT characterizes as a

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purpose-built tool to undermine DP4, but with a result that actually disproves the VFPA’s

hypothesis that DP4 would lessen competition.

[124] GCT claims that following the presentation on December 8, 2017, the VFPA tried to

devise a competition case against DP4 that was not based upon a bona fide policy consideration.

GCT claims rather that the port authority actually tried to create an analysis to support the

VFPA’s predetermined view—which GCT asserts is evidence of bias—that allowing GCT to

build DP4 would result in unacceptable market concentration in the container terminal space at

the Port of Vancouver. GCT points to an internal VFPA email sent two days following the

December 8, 2017, meeting with GCT whereby Mr. Victor Pang sent a message to Mr. Robin

Silvester, President and Chief Executive Officer of the VFPA, stating that he looked into the

HHI, noting that the HHI was being used by the U.S. Department of Justice to assess anti-

competition in merger and acquisition transactions, and indicating as follows: “We’ll run the

math as you suggested. But it looks like this framework (and the way DoJ interprets it) is a pretty

strong tool for us!” [Emphasis added].

[125] GCT queries what “is a pretty strong tool for us” actually means, in particular

considering the email sent the next day from Mr. Pang to the VFPA’s finance staff asking them

to undertake a review of the HHI; after setting out the basis of what the HHI was, Mr. Pang

stated in his email: “Looks like this can be a really good tool for us to communicate market

concentration on the container sector.” Mr. Pang then asks that the HHI be run using various

scenarios envisaging different scopes of the market (from more local ones involving only the

Canadian West Coast at one end, to the entire west coast of North America on the other) as well

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as different capacity scenarios, including existing capacity, capacity with the proposed Vanterm

expansion, DP4 construction—whether or not GCT divests itself first of Vanterm or the VFPA

exercises its right of cancellation of its terminal lease—and the construction of RBT2. Then,

after setting out the different matrices and scenarios to run the HHI, Mr. Pang added: “Research

on HHI applicability-the point here is to build a case for us to talk to GCT and/or officials about

the need to increase competition in the container sector, using HHI as a tool.” [Emphasis added].

[126] Mr. Pang mentioned that he wanted to know, amongst other things, whether Canadian

agencies use this metric, whether the HHI has been used in situations “similar to GCT’s market

position and what it means to expand Vanterm and build DP4”, and whether there were any

examples “where HHI was used as an important factor to halt or place conditions on

M&A/projects/expansion”. As a final comment, Mr. Pang stated:

Part of GCT’s argument is that we should use a broader definition

of market to include PNW [the ports in the Pacific Northwest] and

LA/LB [the ports of Los Angeles and Long Beach, California].

Even if the shipping lines indeed think about the market as up and

down the west coast, I would argue there are specific competitive

concerns that need to be addressed at the national and local level.

And the customers in this market are not just the shipping lines,

but BCO, not to mention other stakeholders. Antitrust issues are

also often looked at both at global and national level. It would be

good if we can find examples where HHI was assessed both

nationally/locally and internationally, and where the agency/court

specifically mentioned that the national/local view is

important/paramount.

[Emphasis added.]

[127] GCT reads the message of Mr. Pang as giving direction on how to build a competition

case against DP4. I can see where one might read Mr. Pang’s message in that way, but there is

also another reasonable way to read his messages. It seems to me that, given the importance of

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maintaining healthy competition within the Port of Vancouver, Mr. Pang was looking to run

different scenarios through the HHI and to come up with a series of results in line with those

scenarios. The actual evidence is that, during his cross-examination, Mr. Xotta indicated that

GCT was using the HHI “as a basis to advance the position that the market share concerns that

VFPA has had for some time were unfounded. And so that discussion led to, [Mr. Xotta

believed], the response or analysis undertaken within VFPA.”

[128] Clearly, the VFPA was not aware of the HHI as a tool to measure market concentration—

and to that extent was educated by GCT on the subject. However, given GCT’s own bias in

favour of DP4—a legitimate and understandable bias of any purely commercial proponent

looking to safeguard its own project and commercial interests—it seems to me that it was

incumbent upon the port authority to look into this matrix and run the series of scenarios so as to

better understand how market concentration would be affected; looking for the parts of the

matrix that GCT may not wish to share with the VFPA in its promotion of DP4 is fair game as

regards the port authority. I can certainly understand that using GCT’s methodology—looking at

concentration over a larger area, say the entire west coast of North America—may diminish the

relative weight of more localized market concentration than if the area of analysis was only, say,

the Port of Vancouver. However, in the end, both the VFPA and GCT are using the same matrix,

the results will be what they will be, and the discussion will continue.

[129] Turning now to the actual results of the VFPA’s analysis of the various scenarios

prepared in March 2018 using the HHI, GCT interprets the results as indicating that whatever

area of the marketplace is adopted—whether just the Port of Vancouver, or Western Canada, or

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Western Canada plus the Pacific Northwest, or the entire west coast of North America—the

development of DP4 does not create increased market share for GCT. That may be true, but that

is, it seems to me, beside the point. At the present time, operating both Vanterm and Deltaport,

GCT controls 78% of the Port of Vancouver container market share, with Centerm (the other

container terminal operator at the Port of Vancouver) having 22% of the market. The building of

DP4 will not change those numbers—Centerm will continue to have its 22% share of the existing

market, and GCT will continue to have its 78% share. With the building of DP4, and assuming

that GCT concurrently divests itself of Vanterm—although before me GCT did not commit to

doing so—its market share based on present container volumes drops to 64% when the

assessment is based only on the Port of Vancouver, being the narrowest view of the marketplace

area as stated in the March 2019 decision; market share for GCT drops even further, to 47%,

even without it having to divest itself of Vanterm, if RBT2 is built and the concession to operate

the terminal is given to a third operator.

[130] However, there is a difference between existing market share and eventual terminal

capacity. From what I can tell, the HHI statistics do not account for future growth in the

container traffic market or the fact that GCT will have, with the building of DP4, the additional

terminal capacity to absorb the expected future increase in total traffic; with total container

volume expected to increase, the proportion of total containers handled by Centerm, assuming

full capacity is reached at that terminal, will continue to drop, meaning that that proportion will

continue to increase for GCT until it reaches full capacity with DP4 having come on stream. That

may be why the VFPA stated in its December 2017 Briefing Note that a near 80% concentration

of market share within the Port of Vancouver represents an unhealthy situation for the supply

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chain marketplace and that no concessions or agreements will be granted for RBT2 that would

result in an operator having more than 60% of the container handling capacity within the Port of

Vancouver.

[131] GCT has not argued that the results of the HHI analysis in the Court record are indicative

of any bias against DP4, nor does it endorse or adopt any of the calculations or methodology in

that chart. Rather, GCT simply states that the chart provides a window into what the VFPA was

thinking at the time and argues only that the results of the analysis do not support the VFPA’s

assertion that its nearly 80% of market concentration will continue if DP4 is built. I do not read

the statistics in the way that GCT is proposing—the concern of the VFPA has been how to

handle future growth and the expected increase in container traffic at the Port of Vancouver.

Rightly or wrongly, I can certainly understand the concern of the VFPA that with the building of

DP4 and with no divesting by GCT of Vanterm, more containers are likely to flow to the area of

available capacity, meaning more and more to a GCT-controlled terminal.

[132] Moreover, I do not agree as GCT asserts before me that in the March 2019 decision, the

VFPA improperly limited the scope of the marketplace for the assessment of market

concentration to only the Port of Vancouver, thus undertaking what GCT argued before me to be

a “constrained view” of the marketplace; GCT argues that when shippers are selecting where to

ship to or where to ship from along the West Coast, their geographic range is not limited to the

Port of Vancouver. I agree; goods destined to or from Canada often have a U.S. West Coast port

of loading or discharge, with the remaining leg of the transit being either by truck or rail

carriage. However, that again misses the point. The VFPA is not operating along the entire West

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Coast; it is concerned with market concentration, and logistics and supply chain management and

efficiencies, in the Port of Vancouver. I cannot see how diluting the results of a study on market

concentration by expanding the area of analysis is of any assistance to the Port of Vancouver, but

then again, as I am not here to assess the merits of the arguments on market concentration, I

leave that issue to the marketing specialists. Suffice it to say that, putting aside the issue of

procedural fairness, which I will deal with below, I see Mr. Pang as someone who, in his emails,

was exhibiting the excitement of having found a new tool to do his job, beyond any particular

project—declaring it to be “a pretty strong tool for us” even before any analysis was undertaken

as regards DP4—and as specifically regards DP4, as a healthy skeptic looking to find the counter

argument to what GCT is pushing, to wit, the idea that the scope of the marketplace for

competition assessment is not simply the Port of Vancouver or even the Canadian West Coast,

but rather the market for container traffic all along the west coast of North America, and that, in

any event, the building of DP4 will not increase its market share at the Port of Vancouver.

[133] There is nothing to suggest that the VFPA would not have then shared its findings with

GCT, thus enhancing the dialogue on market concentration. I do not agree with GCT’s assertion

that Mr. Pang was seeking a results-oriented tool to undermine DP4 on competition grounds, nor

am I convinced that the results of the analysis actually contradict the VFPA’s rationale regarding

its competition concerns. Given that the parties seem to be viewing the starting point of any

competition analysis from different positions, I see nothing sinister in Mr. Pang’s emails.

[134] I also do not accept GCT’s assertion that the rationale articulated by the VFPA in the

March 2019 decision to the effect that DP4 would reduce the number of terminal operators is

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false. That is not what was stated in the March 2019 decision; that decision simply stated that

“expanding Deltaport would mean one terminal operator would control a significant majority of

the market for container terminal services.” Even if, with present volumes, the construction of

DP4 would not necessarily increase GCT’s present market share in the Port of Vancouver, it

seems to me that the issue has more to do with controlling capacity so as to absorb future growth.

[135] To add more fuel to the proverbial fire, GCT further argues that if the VFPA truly had a

concern, as it claims in the March 2019 decision, with one terminal operator controlling a

significant majority of the market for terminal services in Vancouver, why then subsequently, in

March 2020, did the VFPA approve the purchase by DP World—a global port and terminal

operator which operates Centerm at the Port of Vancouver—of Fraser Surrey Docks from the

Macquarie Group, thus reducing the number of terminal operators in the port from three (GCT,

DP World and Macquarie) to two. As GCT rhetorically posed the question, I rhetorically put it to

GCT that maybe it was because the VFPA expected the coming on stream of RBT2, with a

different operator, to create enough of a safeguard to competition; or quite simply, maybe it was

the fact that Fraser Surrey Docks is a multi-purpose terminal. GCT states that there is no

evidence in the record as to the reason why, yet insists that whatever the reason, the purchase

renders the VFPA’s concerns with one terminal operator controlling a significant majority of the

market for terminal services in Vancouver as nothing but a fallacy—a further indicium of a

closed mind. The trouble that I have with GCT’s assertions is that what GCT is doing is making

certain observations and insisting that there is only one way to interpret them. I disagree. There

could be a myriad of reasons why the VFPA allowed one operator to take over operations at

another terminal and while those reasons may not be in the tribunal record, I fail so see why they

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should be; the sale of Fraser Surrey Docks is not the issue in dispute in this case. In the end,

insinuations are not reality, and asserting them does not make it so.

[136] Coming back then to the March 2019 decision, GCT states that any concerns of market

concentration expressed in the December 2017 Briefing Note are beside the point and that the

issue is what was considered by the port authority at the time of the March 2019 decision when,

just two months earlier, GCT had agreed to amend its Lease and Berth Corridor Agreement

[Vanterm Lease amendment] with the VFPA, which purportedly addressed the port authority’s

market concentration concerns. The trouble that I have with that argument is that, when pressed

by the Court, GCT also made it clear that it did not concede any right on the part of the VFPA to

contractually compel GCT to divest itself of its operations at Vanterm under the circumstances

set out in the Vanterm Lease amendment. In other words, GCT is setting up a proposition, but

failing to concede the premise upon which it lies. In any event, GCT argues that examining the

VFPA’s rationale for its competition concerns in 2017, before Mr. Pang embarked on his

competition analysis and before the Vanterm Lease amendment, is of limited assistance when we

compare it with the tribunal record, which is supposedly contemporaneous with the March 2019

decision and which contains no documents to assess the rationale of the VFPA at the time the

decision to shut the door on DP4 was made. I cannot agree. The argument of GCT may have

been tenable if the decision maker was a more traditional, adjudicative tribunal. However, here,

in the context of the running of a port authority, GCT cannot ask the VFPA to limit its decision-

making to a snapshot in time and to disregard corporate history and the well-documented stated

ongoing concerns regarding market concentration. Simply because a specific study on the issue

is not in the tribunal record or was not before the VFPA executives at the time that they

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expressed their concerns over market concentration in the March 2019 decision does not

invalidate the concern, which had, by then, been longstanding. We are dealing with business

people running what the CMA mandates to be a commercially-driven operation, and the DP4

project had been a work-in-progress for some time; if concerns are not fully addressed, they

remain concerns going forward and do not stop being concerns just because they are not

documented every day. GCT has not convinced me that either the HHI analysis or the Vanterm

Lease amendment, especially with it having refused to concede the purported right of the VFPA

to compel GCT to divest its interests in Vanterm under appropriate circumstances as part of that

amendment, should have reasonably caused the VFPA to no longer have the competition

concerns expressed in the December 2017 Briefing Note when the time came to issue the March

2019 decision.

[137] GCT argues that the VFPA, by not assessing its competition concerns on any evidence-

based objective basis and by not having undertaken any analysis to ascertain whether further

consolidation of terminal operators at the Port of Vancouver would have a bearing on pricing to

consumers, or do anything to jeopardize Canada’s competitiveness, which is part and parcel of

its mandate under the CMA, closed its mind to considering the issue, thus exhibiting another

indicium of bias. I do not agree. As I indicate further on, the failure to have the issue tested

within a proper regulatory setting constituted a breach of procedural fairness. It may well be, as

argued by GCT, that there is insufficient support for the port authority’s long-held competition

concerns; however, that would go to the reasonableness of the decision; as GCT’s counsel put it

to Mr. Xotta during his cross-examination, the competition discussion is a question of judgment

and opinion, and reasonable people can differ on that issue.

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[138] On the whole, I have not been convinced that the expression by the VFPA of concerns

over market concentration as part of the rationale for the March 2019 decision was vaguely

framed and unjustifiable, and even less so an indicium of bias against the DP4 project.

(ii)

The tactical way that the March and September 2019 decisions

were orchestrated

[139] In addition to the stated rationale of the March and September 2019 decisions, GCT

asserts that the tactical way that the decisions were orchestrated also leads to a conclusion that

the VFPA was biased in its decision-making process in relation to DP4; it cites further indicia of

the VFPA’s closed mind, which I deal with below.

1.

The role of the VFPA’s previous law firm in the decision-

making process and the paucity of the tribunal record

[140] GCT asserts that the refusal to even consider DP4 on any objective, evidence-based basis

was directed by the VFPA’s previous law firm, which was legally precluded from advising the

VFPA on matters related to GCT because of a disqualifying conflict of interest, as subsequently

found by Justice Pentney in September 2019. It argues that there is no agenda item note and no

circulated material, in particular, nothing as regards competition concerns or environmental

imperatives in the tribunal record as reflecting the decision-making process. In fact, GCT argues

that the March 2019 decision continues to be clouded in mystery with respect to how the

decision was made, what documents were considered, what input was provided and by whom,

and what was rejected.

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[141] The record shows that the decision not to consider GCT’s PPE was made at a meeting of

the VFPA executives on February 13, 2019. GCT asserts that the VFPA, rather than showing its

cards in order to demonstrate what it says now was a legitimate and authorized regulatory

decision, instead went to great lengths to avoid appropriate production of the tribunal record. On

the issue of the lack of documentation in the tribunal record, GCT argues that ultimately, and

rather than depicting when, how, by whom and why the decisions regarding DP4 were made,

other than documentation covered by solicitor-client privilege, the tribunal record is completely

empty of any documentation which would allow for an understanding of the VFPA’s decision-

making. GCT continues by stating that the solicitor-client privilege in question is either privilege

belonging to a client in connection with legal counsel who were acting in a legally impermissible

conflict of interest in March of 2019, or privilege attaching to litigation counsel for the purpose

of defeating the present application for judicial review, as opposed to a bona fide consideration

of DP4 on its merits.

[142] The evidence of Mr. Xotta regarding the lead-up to the March 2019 decision is as

follows:

I participated in several discussions with other members of the

VFPA executive regarding GCT’s PPE, and in particular, VFPA’s

pending decision whether to accept the PPE and advance VFPA’s

statutory decision-making process under the [CMA]. VFPA

executive met on February 13, 2019 and a decision was reached by

consensus among the executive members. Based on that

discussion, I issued [the March 2019 decision]. The rationale for

the decision set out in [the March 2019 decision] reflects the

reasoning applied by the executive in its discussions.

[143] GCT states that I should not have to speculate as to what went through the minds of the

executives during their deliberations culminating in the decision not to move forward with the

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assessment of GCT’s PPE, and that the hush created by the lack of any evidence of any analysis,

report or summary of any discussions leading to the March 2019 decision was deafening. In my

experience, however, it is not.

[144] In a commercial setting where business people often make decisions by walking into

other people’s offices and sitting in the chair in front of their desks to discuss a project that has

been front and centre as part of their daily business lives, the paucity of a written record of the

precise moment of the decision-making process is not unusual. It is important that we keep in

mind that the nature of the decision to be made, to wit, whether or not to even process the PPE

application. Since 2017, there had already been a number discussions, presentations, and

exchanges between GCT and the VFPA regarding DP4, including the February 2, 2018 letter to

GCT, whereby the VFPA specifically addressed its concerns and advised GCT how it intended

to review its application for DP4 under the PER Process when it came time to do so.

[145] I accept that the VFPA may have failed to live up to its commitment to review the PPE,

an issue that I deal with when speaking to the issue of GCT’s legitimate expectations; however,

the point here is that the VFPA executives had convened to decide on how to deal with GCT’s

application, and whether to consider it through the PER Process. I do not find it unusual that for

such purpose, we do not find in the tribunal record, as GCT insists we should, documents such

as: documents scheduling meetings, circulated material, an agenda, expert reports regarding

market saturation and competition as well as environmental issues, minutes to describe who

chaired the discussion, who participated in the discussion, who may have spoken in opposition,

how long the meeting took, who drafted the March and September 2019 decisions, the

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amendments to any possible drafts of the decisions, or documents as may be required by the

Guide that demonstrate that subject-matter experts conducted a review and considered the PPE

on its merits.

[146] The fact is that the PPE was not considered on its merits and the reason for the meeting of

the VFPA’s executives was to determine whether to even consider the PPE on its merits and

allow it to pass through the pipeline of the PER Process. Under the circumstances, I do not find it

unusual that for the purposes of the discussion and the nature of the decision that was to be

made, none of the documents that one may expect to find following a complete review of GCT’s

application under the PER Process were in hand, and that all that may have existed are

documents exchanged with the VFPA’s lawyers given the sensitivity and importance of the

decision to both parties.

[147] It seems to me that what may be causing GCT’s consternation with what it claims is the

paucity of the tribunal record is its failure to appreciate that the VFPA executives have been

living the DP4 project, by that point, for around five years. I find that GCT is missing the mark

by continuously pounding the table on account of the little documentation that was in the actual

hands of the VFPA executives when they sat to discuss what the port authority was to do with

GCT’s application for DP4; it would not be unexpected if the executives felt that they did not

need to review the file because the history of the project and their continued, unresolved

concerns and assessments of the project were committed to memory. That is not to say that the

VFPA did not owe a duty of procedural fairness to GCT once it filed its PPE through the PER

Process portal; in fact the port authority did, and I discuss this issue further below. However, the

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issue here is that GCT is asking me to find the fact that there were no documents before the

VFPA executives on February 13, 2019, went beyond rendering the March 2019 decision

unreasonable, andf was actually an indicium of a closed mind on the part of the VFPA equating

to impermissible bias. That I will not do as I do not agree with GCT’s underlying premise that in

a business context, and considering the reason for the meeting and the nature of the decision to

be made at that stage of the regulatory process that was engaged, I should have expected to find

such a fulsome tribunal record. Suspicions, speculations or the possibilities of bias is not enough.

The test for a reasonable apprehension of bias requires a “real likelihood or probability of bias”

(Yukon Francophone School Board at para 25, citing Arsenault-Cameron v Prince Edward

Island, [1999] 3 SCR 851).

[148] In addition, the meeting of February 13, 2019, was not a board meeting, and I have not

been shown any requirement as part of the VFPA’s internal procedures requiring that when the

executive team is assembled to make a decision on a very specific issue of which the members

are aware, a documentary footprint of such a meeting should be kept. The failure to do so may in

fact render the ultimate decision unreasonable, but escalating such a possible failure to the level

of being an indicium of bias is untenable in the present case. It seems to me that this issue is a

tempest in a teapot. Port authorities are commercial operations, with commercial people running

a commercial establishment, precisely in the way that Parliament intended them to be when

setting them up under the CMA. I have not been convinced that the criteria for documenting the

decision-making process in a business environment is the same as in the context of regulatory

adjudicative boards or tribunals. GCT argues before me that the Court, in judicial review, must

be able to see the decision-making of the decision maker. Here, the tribunal record contains

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about 710 documents outlining the history of the RBT2 and DP4 projects leading up to the

March 2019 and September 2019 decisions. Under the circumstances, the decisions of the VFPA

were properly reflected in the March and September 2019 decisions.

[149] Ultimately, I am not convinced that, under the circumstances, the failure to memorialize

the deliberations that took place during the meeting of February 13, 2019, which resulted in the

March and February 2019 decisions, or the fact that there were no documents before the

executive members other than advice from counsel, are in any way a indicia of bias leading to a

breach of procedural fairness. There is plenty of room in this scenario for the underlying

considerations for the decision not to proceed with the review of GCT’s PPE to have nothing to

do with impermissible bias or any underhanded behaviour on the part of the port authority; there

is not even a reasonable apprehension of bias as far as I can tell.

[150] Moreover, it would not be unusual for the VFPA to have sought legal advice in relation

to a decision which was clearly controversial in the eyes of GCT, and a claim of solicitor-client

privilege in this context would be expected. In any event, GCT’s motion for disclosure of the

documents on which solicitor-client privilege was invoked was dismissed by Mr. Justice Pentney

in his Order dated June 17, 2021. Mr. Justice Pentney was not prepared to override the privilege

associated with communications with counsel, but quite rightly stated that “if VFPA cannot

defend its decisions as reasonable based on the record it has (and/or will) disclose, the decisions

will be quashed. If those decisions could be defended based on something over which solicitor-

client privilege is claimed or which was otherwise not disclosed, then VFPA has only itself to

blame, in the sense that it could have constructed a decision-making process that would have

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allowed it to disclose a better record.” I agree with Mr. Justice Pentney, that the issue is one of

reasonableness of the merits of the decision. However, here, GCT’s argument is that the claim of

privilege was somehow concocted to purposely avoid disclosure and that such conduct is an

indicium of impermissible bias leading to a breach of procedural fairness. I disagree with GCT;

there was a legitimate claim of privilege invoked by VFPA, and claiming malicious intent on the

part of the VFPA does not make it so.

[151] Also, as regards the involvement of the VFPA’s previous counsel, the privilege log filed

by the VFPA shows that on February 6, 2019, the VFPA sent an email to its legal counsel

regarding GCT’s PPE, as well as indications of a draft response from counsel to both GCT and to

the Review Panel regarding GCT’s submission, and eventually a legal opinion on the issues.

GCT argued in essence that there was a breach of the separation between the regulatory and

proponent side of the VFPA’s previous law firm and that the partner who had been assisting the

VFPA on the proponent side for advancing RBT2 through the regulatory process was now giving

advice to the VFPA on the regulatory side on whether the VFPA could legitimately refuse to

process GCT’s PPE.

[152] I am not quite sure what to make of GCT’s submission on this issue; it is not suggesting

that the VFPA should not have retained legal counsel, nor is it actually saying that legal counsel

advised the VFPA not to have any documents in hand when it made its decision so as to not

create a tribunal record. Innuendo alone is not convincing, even assuming that I knew of what I

should have been convinced. I have no reason to doubt that the VFPA’s previous counsel put

themselves in a conflict of interest, and in the end, on September 6, 2019, Mr. Justice Pentney

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made them pay the price, thus compelling the VFPA to retain new counsel. The fact that the

VFPA’s previous counsel put themselves in conflict of interest is unfortunate; however, I do not

know what more to make of that fact; in the end, they were removed.

2.

The current law firm and the tactical attempt to game the

system

[153] GCT argues that in the midst of the present proceedings, and immediately after new

counsel was retained by the VFPA, in an attempt to transform the March 2019 decision somehow

into an interim or interlocutory decision after the fact and thereby immunize its bias from judicial

scrutiny, the September 2019 decision was issued. GCT claims that this rescission decision was

an attempt to “game the system”, drafted by litigators in order to procure the foundation for a

mootness and prematurity argument, and was thus, and in and of itself, proof of the bias; just like

the March 2019 decision, the September 2019 decision was not based on any objective or bona

fide consideration of the merits of DP4, but instead was just a litigation tactic fashioned

exclusively by legal counsel. In any event, argues GCT, there would still be no assurance that

GCT “would get a fair shake” if it was to re-engage the PER Process without further safeguards

as it was invited to do with the September 2019 decision.

[154] GCT again points to the privilege log that was filed by the VFPA showing, in particular,

that on September 13, 2019, the VFPA’s current counsel gave preliminary legal advice regarding

the present judicial review application and that Mr. Stewart—who is supposedly on the

proponent side for the VFPA as regards RBT2—was copied on a message which related to the

VFPA exercising its regulatory role regarding the DP4 project. On the same day, additional

preliminary advice was provided regarding GCT’s PPE and the port authority’s previous

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counsel. The matter becomes problematic, argues GCT, when the privilege log shows that on

September 20, 2019, Mr. Stewart is directly involved with the port authority’s new and current

counsel in drafting what will eventually become the September 2019 decision. GCT claims that

it is clear from the privilege log that this is a process directed by the VFPA’s current counsel,

specifically in relation to the judicial review application, and that Mr. Stewart is at the epicentre

of it. GCT states that, accordingly, the September 2019 decision is not a freely made, bona fide

regulatory decision based on evidence or any policy considerations, but rather purely a litigation

tactic, driven by litigation counsel and the VFPA executive who was primarily responsible for

RBT2, and has nothing to do with DP4 on its merits.

[155] Again, I cannot go where GCT is asking me to go on this issue; GCT’s argument is pure

conjecture. First, there is nothing wrong with the VFPA seeking, retaining and following the

advice of outside counsel. Second, the whole point of the September 2019 decision is that it was

a recognition that there were problems with the March 2019 decision, in particular, the VFPA’s

understanding regarding the effect of the 2003 DFO letters; had there been no issues with the

first decision, there may never have been a rescission decision.

[156] GCT further points to the September 2019 decision—in particular where the VFPA states

that although it continues to believe there to be considerable risks posed to fish habitat by DP4,

the port authority was no longer of the view that such risks are of such a nature that any

consideration of DP4 is not an option—as an excuse for not doing what the VFPA should have

done back in March, and that the bias that existed in March cannot now be rectified. I have not

been persuaded by GCT. The March 2019 decision raised the prospect of risk to fish habitat from

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development in the area of the proposed DP4 project, as expressed in the 2003 DFO letters, as a

concern militating against moving forward with a review of DP4. With the Review Panel

hearings and, in particular, I must think, the testimony of DFO during those hearings that the

2003 DFO letters were not meant to be a prohibition against any development of the area in the

future, I see nothing untoward in the VFPA setting aside the issue of risk to fish habitat as a

prohibitive factor, pending the assessment process for DP4.

[157] GCT raises the same argument with the manner in which the VFPA treated the issue of

maintaining competitiveness within the port in the September 2019 decision; the VFPA made it

clear that although the question of competitiveness/capacity control remained a serious issue to

be considered in review of DP4, the VFPA was nonetheless prepared to no longer treat that

question as a gating issue militating against assessing the project, and was prepared to “further

consider that issue through the information and analysis that will be undertaken though the

federal impact assessment of DP4 and our PER process”. GCT argues that the bias is patent in

the VFPA having done what it did in March with refusing to even process its PPE, and that the

VFPA was no longer in any position to deal with the review process in an unbiased fashion.

[158] Again, I have not been persuaded and must reject what I find to be GCT’s bald assertion

of improper purpose in the VFPA having rescinded the March 2019 decision. The evidence of

Mr. Xotta on cross-examination is as follow:

On September 23, 2019, shortly after retaining McMillan LLP, the

VFPA executive met by telephone to consider the implications of

the Federal Court ruling [I take it regarding Mr. Justice Pentney’s

decision to disqualify the VFPA’s previous counsel] and the VFPA

position set out in [the March 2019 decision]. Following a further

discussion among VFPA executive members, on behalf of VFPA

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CEO Robin Silvester issued [the September 2019 decision] to

GCT, rescinding [the March 2019 decision]. The rationale for the

decision set out in that letter reflects the reasoning applied by

VFPA executive in the September 23, 2019 meeting.

[159] It is clear to me from the September 2019 decision that events subsequent to the March

2019 decision which could legitimately inform the decision-making process did just that, and

caused the VFPA to rethink its position regarding the review of DP4. In the September 2019

decision, the VFPA indicated that it further considered the concerns of GCT as expressed during

the Review Panel hearings on RBT2 as well as in the judicial review application—which

included GCT’s claim of impermissible bias. The landscape had changed between the March

2019 decision and the September 2019 decision: hearings took place before the Review Panel

under the CEAA and the enactment of the IAA shifted the heavy lifting of environmental

assessment of “designated projects” from the VFPA to the Agency.

[160] It was also likely that a change of solicitors—upon which GCT looks with a cloud of

suspicion—brought forth a fresh perspective on the appropriateness of proceeding with the PER

Process, which the VFPA had not only set up, but which, in this case, had already been engaged

before a stop was put on the process by the port authority. In addition, as admitted by the VFPA

in the September 2019 decision, the filing of the application for judicial review also had a hand

in the decision to rescind the March 2019 decision. I am simply not persuaded to go as far as

GCT wishes to take me and find that the September 2019 decision was a tactical decision to

shield the VFPA from judicial review rather than, just as likely, the result of a series of

developments having the effect of focusing the minds of business people whose attention is more

normally focused on commercial port operations. From a simple reading of both the March and

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September 2019 decisions, it seems to me that the VFPA is not an impetuous or petulant decision

maker that stubbornly sticks to its decision in the face of changing circumstances which would

reasonably call for reconsideration of what clearly was an important decision for GCT. I have not

been persuaded to read the March and September 2019 decisions as evidence of a closed mind

beyond a simple level of pre-judgment on the part of the VFPA executives, which may be

expected under the circumstances, and certainly not pre-judgment of the matter to such an extent

that any representations to the contrary would be futile (Newfoundland Telephone; Old St

Bonifac at p 1197).

[161] GCT also asks that I contrast the September 2019 decision with one of the May 2020

letters sent by the VFPA to various First Nations communities—in particular the May 25, 2020

letter sent to the Malahat Nation [Malahat Nation letter], where the VFPA asserts that the option

to proceed with DP4 “was rejected by the port authority for a number or reasons, including

environmental concerns with further development at that location, competition concerns and

anticipated trade needs.” The letter goes on to make clear that the VFPA has no plans to pursue

DP4, that GCT requires port authority approval to pursue the project, that GCT was not at that

time engaging the port authority in relation to DP4, and that nothing required the VFPA to

ensure that GCT was the only container terminal at Roberts Bank. GCT asserts that these

statements are evidence of the VFPA’s closed mind and that the message being conveyed in the

letter is that DP4 “is not on” and GCT cannot do anything without the port authority’s approval;

this is all independent evidence, says GCT, of the VFPA closing its mind to the PER Process.

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[162] I am not convinced. The letter must be read in context. GCT had engaged in what one

may describe as a public relations campaign in favour of the DP4 project—as far as I am

concerned, fair game in the promotion of its commercial interests. The letter sent to the Malahat

Nation by the VFPA includes the following introductory paragraph:

Over the last number of weeks we have received several comments

and questions from Indigenous groups related to information that

appears to have been provided by [GCT]. We are writing to you

today to respond to requests for further information about the

status of the RBT2 project relative to the GCT claims about a

project it has said it is proposing. In this regard, I am pleased to

share the following with you.

[163] Clearly, the Malahat Nation letter, as with the remainder of the May 2020 letters sent by

the VFPA to other First Nations communities, was meant to address questions which arose on

account of information disseminated by GCT in support of DP4. I can hardly fault the VFPA in

looking to clarify the status of the two projects in answer to stakeholder questions, nor do I see in

the May 25, 2020 letter any sign of a closed mind creating impermissible bias. GCT has not

argued that any of the statements made by the VFPA in that letter were incorrect. Rather, it

seems to me that the VFPA had moved on given that GCT had refused to re-engage the PER

Process. A port authority cannot be expected to suspend its development plans waiting for a

particular proponent to engage its review process, which GCT refused to do following the

September 2019 decision. The positions of the parties were clearly set out in the exchanges of

the previous September and October; those positions had consequences for both parties. Nor can

the prospect of an application for judicial review create a situation whereby the port authority is

put in a state of suspended animation; life moves on, and GCT cannot expect the judicial process

to act as a brake on the continuation of the VFPA’s development plans pending the outcome of

the judicial proceedings, and where such plans are not halted, claim that the VFPA has somehow

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closed its mind in a manner that renders it biased. In a way, whenever we move on in life, we are

somehow closing our mind to what may have been, but that cannot be equated to bias towards

what could have been.

[164] On the whole, I am not convinced of any attempt by the VFPA to “game the system”.

3.

Deliberate avoidance of transparency by the VFPA in an

effort to immunize itself from the bias allegation

[165] GCT argues that it has been forced to embark on a repeated effort to extract a proper

tribunal record from the VFPA; between what it claims to be glaring omissions from the tribunal

record, which shows that the VFPA predetermined its rejection of DP4 even before any

application was submitted, and the scope of the questions that were the subject of improper

refusals during the cross-examination of the VFPA—where GCT was trying to elicit

explanations for such omissions so that they could be understood and reviewed by the Court—

GCT claims that the VFPA’s approach to the tribunal record compounds its bias and that there is

clear evidence which demonstrates the VFPA’s effort to immunize itself from the bias allegation.

Again, some context is required.

[166] Following the dismissal by Prothonotary Furlanetto of the VFPA’s motion to strike the

judicial review on the basis of mootness and prematurity, GCT made a Rule 317 request for

production of the tribunal record on March 12, 2020—the initial Rule 317 request included in the

application for judicial review was struck by the Prothonotary—, about a year after the

institution of the present application for judicial review and five days prior to the issuance of this

Court’s first Practice Direction and Order (COVID-19). This matter was heavily case managed,

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and following a series of case management conferences dealing with, inter alia, scheduling

issues, on September 9, 2020, the VFPA produced a tribunal record consisting of about

478 documents. GCT considered disclosure by the VFPA to be inadequate and brought a motion

under Rule 318(2) for further disclosure, which was granted by Mr. Justice Pentney on June 17,

2021 [June 17, 2021 Order]; Mr. Justice Pentney found, inter alia, the VFPA’s disclosure of

board materials to be incomplete and found as troubling the fact that no material was provided

for the entire 2019 year given that the decisions being challenged were made during that year. As

a result, Mr. Justice Pentney ordered the VFPA to disclose certain specifically identified

documents and to identify a senior official to supervise a review of its document holdings and to

search for certain other categories of documents for disclosure.

[167] With cross-examinations on the merits of the present application set to begin in mid-

August 2021, the VFPA produced another 100 documents at the end of July 2021. The VFPA

concurrently prepared an affidavit from Mark Gustafson, its General Counsel and Corporate

Secretary, outlining the manner in which he supervised and instructed the collection of

documents in response to the June 17, 2021 Order; amongst other things, Mr. Gustafson stated in

his affidavit that certain requested documents did not exist. GCT’s informal request to cross-

examine Mr. Gustafson on his affidavit was allowed by Mr. Justice Pentney on August 25, 2021

[August 25, 2021 Order], in particular on the efforts that had been undertaken to produce

documents. Mr. Justice Pentney commented on the unusual situation of the parties, to wit, that

the VFPA is both the decision maker and a full party to the proceeding, and that more

commonly, the decision maker is not a party to the judicial review proceeding and provides its

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Rule 317 disclosure as a matter of course, typically based on a clear record that is essentially the

evidence that was presented before it by the parties.

[168] A few hours before the cross-examination of Mr. Gustafson was set to begin on

September 3, 2021, the VFPA announced that additional documents within the scope of the June

17, 2021 Order were discovered; an additional 100 documents were produced by the VFPA, but

only later in the afternoon of September 3, 2021, after the cross-examination of Mr. Gustafson.

Finally, as confirmed by GCT, another 10 documents were disclosed a week later.

[169] GCT argues that such a chronology is hardly the conduct of a statutory decision maker

attempting to provide transparency into a bona fide evidence-based decision, and as a result of

such conduct, the VFPA cannot point to anything in the record, other than the privilege log or

bald assurances, to refute the bias allegation or to defend the motivations behind the March and

September 2019 decisions. The paucity of the record also provides the Court with no ability,

argues GCT, to test the motivations behind such decisions, and results in restricting GCT’s

ability to test its bias allegation during its cross-examination of the port authority. GCT cites

Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190; Slansky v Canada (Attorney

General), 2013 FCA 199, [2015] 1 FCR 81; and Lukács v Canada (Transportation Agency),

2016 FCA 103, for the proposition that in order for the Court to fulfill its supervisory function in

judicial review, it must have access to the records underlying the decision which is being

reviewed and that an inadequate evidentiary record could immunize the decision maker from

being reviewed on certain grounds.

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[170] As regards the cross-examination of Mr. Gustafson, GCT listed a series of undertakings

that it sought as to certain documents, for example, an agenda of the board meeting or minutes of

that board meeting, which were not produced because the questions were met with an objection

by VFPA counsel and an undertaking was taken under advisement; the undertakings were

eventually refused on the grounds that the questions fell outside the scope of the August 25, 2021

Order. As a further example of the VFPA refusing production, GCT specifically points to the

failure on the part of the VFPA to produce the email responses and questions posed by the board

members (including the collated list of board questions, of which there were as many as 39) in

advance of the March 21, 2018 board meeting, which purportedly went into the preparation of

Mr. Wilson’s speaking notes in advance of that board meeting. Again, it seems from the

undertakings chart that the request was taken under advisement and eventually refused on the

grounds that the question was outside the scope of the August 25, 2021 Order. As the hearing on

the merits was soon approaching, dealing with the refusals was left to me.

[171] GCT argues that its requests for further production which were made during the

cross-examination of Mr. Gustafson and which were ultimately refused by the VFPA were

specifically authorized by Mr. Justice Pentney in his August 25, 2021 Order, which states at

paragraphs 26 to 28:

[26] As described above, the record’s adequacy is tightly

connected to GCT’s underlying complaint in this case: VFPN’s

concurrent roles as both the decision-maker and a party to the

dispute. It is likely that the record’s adequacy will continue to be a

live issue between the parties, and the hearing judge may be asked

to either make a ruling or take this into account in reaching a

decision on the merits. Either way, the hearing judge will benefit

from a full understanding of the disclosure made, and

Mr. Gustafson’s answers to questions about this in cross-

examination may provide useful and relevant clarification.

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[27] Permitting cross-examination will add a further step to the

proceeding, but it will not unduly delay it or add great expense.

Conversely, the absence of such an Order might result in an

incomplete record for the hearing judge, thus impeding the Court’s

ability to determine the matter in a just manner.

[28] The cross-examination will be limited in scope, and should

not therefore impose an undue burden on VFPA or its counsel. The

questions raised by GCT about alleged inconsistencies or gaps in

the disclosure, as revealed by the affidavit of Mr. Gustafson,

should be answered so that the hearing judge will have a full

understanding of the nature of the record.

[172] At paragraph 31, Mr. Justice Pentney stated:

[31] Therefore, I will order that GCT is permitted to cross-examine

Mr. Gustafson, at a time and place to be agreed between the

parties, only in relation to his evidence about the nature and scope

of the search undertaken pursuant to my Order of June 17, 2021,

and the documents that were found but not produced. No questions

shall be asked of him relating to the merits of either the VFPA

decisions being challenged or the VFPA decision-making process.

[Emphasis added.]

[173] The dispositive portion of the August 25, 2021 Order is consistent with paragraph 31. In

addition, the June 17, 2021 Order provided the following, at paragraphs 71 and 72:

[71] In light of this, I find that the disclosure of Board materials is

incomplete, and it is troubling that there is no material provided for

the entire 2019 year, given that the decisions being challenged

were taken during that year.

[72]At a minimum, VFPA must complete the disclosures it has

already made, including the Board agenda, minutes, and any other

materials that mention the DP4 project for the meeting of

March 21, 2018. VFPA must also disclose the contents of the .zip

file attached to the e-mail that refers to the Project Board meeting

on February 25, 2019 (VFPA Production 00028), as well as any

minutes produced from that meeting which will confirm for the

reviewing judge whether this is a reference to a meeting of the

Board, or a Project Board as contended by VFPA. Prior case-law

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supports that where a disclosed document mentions an attachment,

that document should also be disclosed (1185740 Ontario Ltd v

Minister of National Revenue, 169 FTR 266, 1999 8774

(FCA) at para 6).

[174] Finally, the dispositive portion of the June 17, 2021 Order provides, inter alia:

…

[4] VFPA is ordered to identify a senior official to supervise a

review of its document holdings, including paper and electronic

documents (including current holdings and any archives), to search

for the following categories of documents:

…

d. Internal Correspondence Related to DP4:

i. VFPA shall conduct a search and produce

any internal documents relating to the

analysis that VFPA officials undertook of

GCT’s PPE after it was submitted on

February 5, 2019, and prior to the March

2019 decision.

[Emphasis added.]

[175] GCT points to an email dated February 12, 2019—within the range of dates covered by

the June 17, 2021 Order—which is listed in the privilege log produced by the VFPA and which

the port authority’s previous counsel sent to various people at the VFPA, including Mr. Bryan

Nelson, identified as the Director of Infrastructure Sustainability for the VFPA; the email is

described as, inter alia, draft responses to GCT’s PPE dated February 5, 2019.

[176] GCT also asserts that previous counsel also copied in Ms. K. Bamford, identified as the

Director of Trade Development for the VFPA. I do not follow GCT with this argument as the

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email identified as involving Ms. Bamford was actually sent to her by Mr. Xotta, is dated a day

earlier (February 11, 2019), and relates only to GCT’s submissions to the Review Panel.

[177] In any event, the point of the matter is that GCT argues that both Mr. Nelson and

Ms. Bamford are included in relevant communications which are subject to privilege, but are not

included in the search criteria for the searches conducted in compliance with the June 17, 2021

Order. During the cross-examination of Mr. Gustafson, the request by GCT for the VFPA to

perform relevant searches of the records of Mr. Nelson and Ms. Bamford was refused on the

grounds that their roles did not include any aspect of permitting approvals or preliminary project

review and were thus not relevant.

[178] First, I do not read either the June 17, 2021 Order or the August 25, 2021 Order as

authorizing undertakings to be requested during the cross-examination. The August 25, 2021

Order allowed for the cross-examination of Mr. Gustafson “in relation to his evidence about the

nature and scope of the search undertaken pursuant to my Order of June 17, 2021, and the

documents that were found but not produced” [emphasis added]. In addition, I do not agree that

the evidence pointed to by GCT supports the argument that the records of Ms. Bamford should

have been included in the search criteria undertaken in compliance with the June 17, 2021 Order;

however, I do agree as regards Mr. Nelson.

[179] The sole document involving Ms. Bamford was sent to her by Mr. Xotta on February 11,

2019, and is described as being GCT’s submissions to the Review Panel. As she was the Director

of Trade Development, I can understand why she may have been interested to read what GCT

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had to say before the Review Panel; however, that is a completely separate issue to the one at

hand. There is no evidence that Ms. Bamford is part of the VFPA executives who met on

February 13, 2019, and September 23, 2019, to make the March and September 2019 decisions

or that she was involved in permitting approvals or preliminary project review or in any analysis

that the VFPA officials undertook of GCT’s PPE after it was submitted on February 5, 2019, and

prior to the March 2019 decision.

[180] However, the situation is different as regards Mr. Nelson; his capture by the search

engine may well have been a stray hit; however, he was copied on the VFPA’s previous

counsel’s email, which attached draft responses to GCT’s PPE. I would have to think that

counsel was instructed to copy him on it. It may well be that he was only copied on it because

the email of February 12, 2019, also attached a draft response to the Review Panel regarding

GCT’s submissions of February 8, 2019, an issue in which Mr. Nelson may have been involved.

Be that as it may, and although it is not clear what role he may have had in any analysis that the

VFPA officials may have undertaken of GCT’s PPE, to give full effect to the June 17, 2021

Order, I find that he should have been included in the search. I accept that the search may have

been restricted to those who the VFPA states were involved in permitting approvals or

preliminary project review, but the June 17, 2021 Order called for a search of documents relating

to the analysis that the VFPA officials undertook of GCT’s PPE after it was submitted on

February 5, 2019, and Mr. Nelson’s capture in the privilege log has not been sufficiently

explained by the VFPA.

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[181] GCT argues that the failure to produce the requested documents is more evidence of a

lack of transparency, which demonstrates a closed mind, and that the examples of Mr. Nelson

and Ms. Bamford are but two more examples of an attempt to immunize the VFPA from judicial

review and sanitize the March and September 2019 decisions. I do not agree, nor do I find that

this was a situation of “hiding the pea” as Mr. Justice Phelan put it at paragraph 16 in Lafond v

Ledoux, 2008 FC 1369; skirmishes between counsel regarding the scope of document production

and disclosure orders is not uncommon, and I am not prepared to find that the omission to

include Mr. Nelson in the search criteria is evidence of bad faith on the part of the VFPA; nor am

I inclined to accept that the VFPA resorted to an overbroad assertion of solicitor-client

privilege so as to immunize itself from judicial review. Keep in mind that as a result of the June

17, 2021 Order, an additional 210 documents were produced. I am sympathetic to GCT’s cry of

foul and its claim that obtaining document disclosure from the VFPA—although nonetheless still

deficient—was like pulling teeth. However, I am also conscious of the fact that we are dealing

with a non-traditional regulatory decision maker whose tribunal record is not necessarily bundled

up nicely within party records and, unlike traditional adjudicative regulatory decision makers,

must resort to e-discovery tools to comply with production requirements; this is not, as alluded to

by Mr. Justice Pentney, a more commonly found situation where the decision maker is not a

party to the judicial review proceeding and provides its Rule 317 disclosure as a matter of

course, typically based on a clear record that is essentially the evidence that was presented before

it by the parties.

[182] More to the point, and putting aside the issue of why undertakings would be taken on

cross-examination, I fail to see why email responses and questions posed by board members, or

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any of the documents listed by GCT in its Supplemental Memorandum of Fact and Law, would

necessarily have formed part of the tribunal record. These proceedings are not in the nature of an

action, and the cross-examination of Mr. Gustafson as ordered by Mr. Justice Pentney was not a

discovery. Before adjudicative decision makers, the parties appear and submit their material,

which together, and aside from certain exceptions, form the tribunal record. Here, the CMA has

created what Mr. Justice Pentney referred to as an “unusual situation” whereby the VFPA is both

the decision maker and a full party to the proceeding, an entity with a commercial mandate, and

it is that situation which must guide us on what we should or should not expect to be found in the

tribunal record. If I am to accept the assertions of GCT, I should expect to see every email to and

from the VFPA addressing DP4, or at least relating to the VFPA concerns regarding DP4 which

formed the rationale behind the March and September 2019 decisions, as far back as 2014, when

GCT first began putting the DP4 project together. That is untenable as it completely disregards

the nature of the decision maker.

[183] As I stated earlier, in a commercial setting where large-scale projects have been front of

mind for several years, decisions are regularly made based upon the appreciation, perspective,

understanding and recollection of the business people called upon to make decisions on a day-to-

day basis, without having to constantly gather up what may be thousands of previous emails,

reports, submissions, presentations, notes and letters so that any decision can be made. That is

not to say that had the PER Process continued, a fulsome record of any final decision would not

have to be kept—a record which I would think would include the application and submissions of

GCT and all reports, analyses, and exchanges supporting that final decision as called for in the

PER Process, as well as a justified, transparent and intelligible final decision. However, again,

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the context of the March and September 2019 decisions was to determine whether to even allow

the PPE through the PER Process. In that context, I have not been convinced that I should expect

to find what GCT is stating that I should find as part of the documents that were before the

VFPA executives when they rendered the March and September 2019 decisions, and I have been

even less convinced that the failure to find such documents evidences a closed mind leading to

impermissible bias against DP4 by the VFPA.

4.

Efforts to undermine DP4 to third-party stakeholders

[184] GCT argues that the tribunal record, rather than demonstrating any foundation behind the

decisions, depicts repeated efforts by the VFPA to undermine DP4 to third parties, further

evidence of its closed mind. It is one thing, argues GCT, for a regulator to claim that it has a

policy-based preference for one expansion project over another, but it is quite different for a

regulator to perpetuate a campaign to actively undermine DP4 to other stakeholders, an activity

that is found nowhere in the VFPA’s statutory mandate, and demonstrates its bias.

[185] GCT points to the VFPA’s letter of April 27, 2018, to the then Minister of Transport and

to the letter of May 5, 2018, to the then Minister of International Trade, sent just a few months

following the Hemmera Report, which expressed the view that development in the area of the

proposed DP4 project is “a highly sensitive location that the Minister of Fisheries stated

unequivocally in 2003 would not be permitted.” GCT states that such a mischaracterization of

the 2003 DFO letters was intentional given that the Hemmera Report was already in hand and

that DP3 was in fact permitted to be built in that area in 2010.

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[186] GCT also points to the March 29, 2019, email by the VFPA to the Prime Minister’s

office, which was sent over four weeks after the March 2019 decision and the day after the

present application for judicial review was filed and served, where the same mischaracterization

took place; as stated earlier, the briefing note attached to the email stated that the VFPA had

evaluated the same area as the one being proposed for DP4 as one of several option for RBT2,

but rejected it because DFO advised that no Fisheries Act permits would be issued for that area

given the sensitive intertidal waters, and thus the decision on where to build RBT2 was guided in

large part by direction from DFO in 2003 that only expansion options beyond the existing

Deltaport terminal in deeper water should be considered and that permits for options in highly

sensitive habitat closer to the shore would not be granted.

[187] GCT also highlights the meeting between the VFPA and the Prime Minister’s office on

April 10, 2019. The next day, the VFPA sent over the briefing note, updated to April 3, 2019, as

well as the PowerPoint presentation given during the meeting the day before, and the RBT2

Project Rationale document, with the same mischaracterization of the purported environmental

non-starter as expressed by the VFPA in previous correspondence.

[188] GCT also cries foul because come the September 2019 decision, where the VFPA

purports to reopen the PER Process for the PPE, it does not go and correct the record with the

Prime Minister’s office or with any of the Ministers, who are left with the false impression

created earlier regarding the purported environmental concerns with DP4.

Page: 102

[189] The assertions made by GCT of the mischaracterization by the VFPA of the 2003 DFO

letters, given the Hemmera Report and the development of DP3, must be placed into context. In

2003, the project that was being discussed with DFO was a larger terminal expansion at

Deltaport, larger than what would eventually be built as DP3. In its letter of April 1, 2003, DFO

stated at the time that it “will not be involved in any review of the Delta Port proposal as the only

option proposed for that project results in the destruction of critical fish habitat on the east side

of the causeway.” In its July 29, 2003 letter, the Minister of Fisheries and Oceans stated that

“DFO will not consider issuing a Fisheries Act Section 35(2) authorization for the destruction of

this critical fish habitat.” The letter went on to indicate that DFO had suggested that the VFPA

“focus its efforts on options that have a lesser likelihood of damaging critical fish habitat … in

deeper water, where construction would likely have less impact on the Estuary’s fish habitat …”.

[190] DFO did eventually sign off on the construction of DP3, but only after the footprint of the

project was reduced by about 30% on the north—the intertidal water area—to accommodate

DFO’s expressed concerns. The DP4 project, on the other had, as I read the “description project

layout” schematics provided by GCT, is looking to develop not only the 30% which was not

acceptable to DFO in 2003, but proposes to continue north, into the intertidal water area on the

landward side of the causeway. To claim, as GCT does, that the building of DP3 is proof positive

that the VFPA mischaracterized the 2003 DFO letters is unfair. If one considers the area of the

proposed DP4 project, it is very much in the area that DFO considered to be a “critical fish

habitat.”

Page: 103

[191] As regards the Hemmera Report, I do not agree with GCT’s assertion that there has not

been any controversy, since 2017, over the fact that the report laid to rest the notion of any

prohibition. It is true that the Hemmera Report was issued several months earlier and was in the

hands of the VFPA at the time that it sent the briefing notes to the Minister of Transport and

Minister of International Trade; however, as stated already, the report does not come to the

conclusion that the 2003 DFO letters did not constitute a “prohibition” on development in the

area proposed for DP4—to the north and into shallower waters from the present DP3—but rather

simply provides guidance and suggestions on how to possibly mitigate the environmental risks

expressed by DFO at the time for projects being built today.

[192] As regards the legitimacy of the claim that the 2003 DFO letters constituted a

“prohibition” against development in the area proposed for DP4, GCT says that the issue is

conceded and that the record contains three separate confirmations of there being no prohibition

against development of the area proposed for DP4. GCT first points to the testimony of

Mr. Magnan, the DFO representative, during the RBT2 Review Panel hearing on May 22, 2019,

regarding the 2003 DFO letters, as follows:

MEMBER LEVY

Okay. Given that the world has changed a lot since 2003, we have

a new habitat policy, we have a new Fisheries Act that’s in front of

the Senate right now, is it still DFO’s position that development in

the intercauseway would be unacceptable?

MR. MAGNAN

And again, I just want to reference that the letter indicated that

particular project based on a footprint and a time and a review, the

legislation then, that development would not have been approved

or issued an authorization. The letter was not meant to indicate that

there was any kind of blanket statement in terms of any

development in that area. It was very specific to that project.

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So - - and again, each project is weighed and based on the

application received, the current legislation and the current

policies. So in the future, should a project come in, DFO will

review the application and make a decision based on the

information that’s presented to us.

[193] GCT then points to the affidavit, dated August 12, 2020, of Mr. Dave Carter, who is with

DFO and is one of the affiants for the Attorney General in these proceedings, who states the

following at paragraph 12 of his affidavit:

The [July 29, 2003 letter from the Minister of Fisheries and Oceans

to the VFPA] was based on the specific project applications at the

time. In the future, should a proponent apply to DFO for an

authorization for its proposed project, DFO would review the

application and make a decision based on the information that is

presented.

[194] Finally, GCT points to the cross-examination, on August 20, 2021, of Mr. Carter in these

proceedings, as follows:

Q. Mr. Carter, can you please confirm that if and when an

application is provided for DP4 by GCT, DFO will review that

application and make a decision based on the information

requested - - or provided?

A. Yes, it will.

Q. And I take it from your evidence in paragraph 12 that that

decision will include an objective review of the application

material?

A. It will definitely include a review of the application material.

Q. And that review will be impartial?

A. Yes.

Q. And objective?

A. Yes.

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…

Q. Mr. Carter, can I just take you to paragraph 5 of your affidavit.

It’s on page 2.

A. Yes.

Q. You’ll see there in the second sentence you describe the two

2003 letters we were speaking of earlier and saying “the VFPA

sought DFO’s advice to identify the options that presented the least

risk to obtaining regulatory approval.” Do you see that?

A. Yes, I do.

Q. And I take it from you evidence that neither of the two letters

prevented subsequent applications to be made to the DFO in

respect of projects in that area?

A. That’s correct. There was no blanket ---yeah.

Q. No blanket prohibition?

Yeah.

Q. And by that I mean no blanket prohibition on further

applications or further developments in the intercauseway area.

A. That’s correct.

[195] GCT says that DFO has confirmed three times what the VFPA knew since November

2017, when it received the Hemmera Report, that is, that the suggestion of a prohibition on the

development of DP4 is nonsense, but the VFPA was still promoting, through carefully worded

language, the fiction of a prohibition well after the present application for judicial review was

filed and served.

[196] I do not agree with GCT. No doubt that following the testimony of DFO during the

Review Panel hearings in May and June 2019, the 2003 DFO letters were not to be taken as a

blanket prohibition regarding development of the area proposed for DP4. But again, that misses

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the point. Hindsight is 20/20, and in fact, in the September 2019 decision, the VFPA clearly

referenced the DFO testimony during the Review Panel hearings as one of the reasons why it

was rescinding the March 2019 decision. The question, rather, is whether, at the time the March

2019 decision was made (prior to the Review Panel hearings, and before the affidavit of

Mr. Carter and his cross-examination), the claim of the existence of such a prohibition by the

VFPA was evidence of bad faith, a closed mind beyond simple permissible pre-judgment, so as

to constitute impermissible bias. Given the lack of clarity on this issue in the Hemmera Report, I

am not prepared to say that it was. Again, as stated by Mr. Xotta during his cross-examination, at

the time of the March 2019 decision, the VFPA executives, rightly or wrongly, understood such

a prohibition to exist in the area north of what is presently DP3, and in the area of the proposed

DP4 project.

[197] GCT then points to the Malahat Nation letter dated May 25, 2020, as further evidence of

a closed mind regarding DP4. The Malahat Nation letter states, amongst other things:

The port authority is, under the [CMA], fully responsible for

decisions related to developments on port lands. After many years

of consideration, we decided to pursue the RBT2 project to meet

growing container terminal needs in the future … .

In making this decision, the port authority considered numerous

options including further development on the east side of the

causeway adjacent to GCT’s existing Deltaport terminal. This

would generally correspond with what GCT refers to as the

potential “DP4” project.

That option was rejected by the port authority for a number of

reasons, including environmental concerns with further

development at that location, competition concerns and anticipated

trade needs. The independent federal review panel expressly

considered this issue and held a day of hearings specifically

dedicated to alternatives. GCT participated extensively. The panel

has now spoken and it has supported the port authority’s

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conclusion to locate the terminal in deeper waters, stating at

page 57 of its report:

The Panel concludes that the Proponent’s assessment of

alternative means of carrying out the Project was appropriate.

To be clear:

 The port authority has no plans to pursue development

adjacent to the existing GCT facility;

 GCT does not have the ability to pursue an expansion

without the port authority’s approval (and in this regard it is

noteworthy that the prior expansion of Deltaport Third

Berth was initiated by the port authority – not GCT);

 GCT is not engaging with the port authority in relation to

any expansion of its facility; and

 Nothing requires the port authority to ensure GCT

continues to be the only container terminal operator at

Roberts Bank.

[198] GCT argues that the VFPA, despite purportedly having an “open mind” and rescinding its

March 2019 decision with the September 2019 decision, then asserted in the Malahat Nation

letter that the DP4 project had been rejected by the VFPA for reasons which included

environmental and competition concerns.

[199] I do not think that GCT is giving the Malahat Nation letter a fair reading. As stated

earlier, the letter must be read in the context of addressing questions which arose on account of

information disseminated to the First Nations communities by GCT in support of DP4. The

VFPA set out its role under the CMA and stated that after many years of consideration, it

decided to pursue RBT2 to meet the future needs of the port. The VFPA stated that in coming to

that conclusion, the port authority considered several options, including the DP4 project.

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However, DP4 “was rejected by the port authority for a number of reasons, including

environmental concerns with further development at that location, competition concerns and

anticipated trade needs.” As at the March 2019 decision, that statement by the VFPA was

correct. The VFPA also stated in the Malahat Nation letter that it “has no plans to pursue

development adjacent to the existing GCT facility.” That statement was also correct, particularly

given that GCT has not re-engaged the PER Process following the September 2019 decision.

[200] What is central to understanding what the VFPA is saying is to recall that in the

March 2019 decision, the VFPA made it clear that it would only consider DP4 as “subsequent

and incremental to the RBT2 project.” I disagree with GCT that the letter to the Malahat Nation

is a declaration by the VFPA that DP4 is “dead”. The evidence shows that the VFPA was

concerned with the fact that it would take several years more for DP4 to achieve environmental

assessment approval, if at all, than it would for RBT2, especially as it was looking to develop an

area already flagged as problematic. The VFPA was also concerned with the fact that DP4 would

be coming on stream when it was not clear just how much additional capacity would be needed

beyond RBT2 and that its development timeline would conflict with that of RBT2. The

September 2019 decision did not change that aspect of how the VFPA was inviting GCT to re-

engage with the PER Process. That is also consistent with how the VFPA mentioned to GCT in

its letter of February 2, 2018, that it would approach GCT’s application for DP4 if and when

made. In that letter, the VFPA stated: “… it would be entirely appropriate and indeed incumbent

upon VFPA to also consider the impacts of a DP4 project on the overall port operations. VFPA

would also consider the issue of timing, recognizing the very significant lead times required for

such projects, and the looming need for more near term capacity in the Port of Vancouver.”

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[201] The concern regarding the delayed timing of DP4 was also expressed in the March 2019

decision when the VFPA stated: “We note that your proposed development timeline would

conflict with the implementation of RBT2 capacity.” In fact, the VFPA executive speaking notes

for the March 21, 2018, board meeting include the subject of any alternatives to the RBT2

project that were considered. Particularly regarding DP4, the speaking notes of Cliff Stewart

provide:

Further expansion at Deltaport, or DP4 as it is known, is not a

viable solution for the following reasons:

•

Past direction from [DFO], including a letter from

the federal fisheries minister, that any further

expansion on the east side of the intercauseway

would not be given a permit due to environmental

concerns. The proposed intertidal location would

also destroy existing habitat compensation efforts

from past expansion initiatives.

•

Given its proximity to sensitive environmental

areas, GCT’s proposal would likely be assessed as a

designated project, which requires a lengthy federal

review. As GCT has not commenced an

environmental assessment of the project, it can be

assumed that they are potentially up to 10 years

behind RBT2 for delivery, even if their project was

found to be approvable.

…

[Emphasis added.]

[202] I do not agree with GCT when it asserts that the Malahat Nation letter was a clear

expression of opposition to DP4 after the VFPA claimed to no longer have a closed mind by

rescinding the March 2019 decision. If there was a “closing of the mind” on the part of the

VFPA, it was, as made clear in the March 2019 decision, only with respect to developing DP4

“at this time”. That does not, in my view, suggest impermissible bias in this context, especially

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given the concerns surrounding DP4; rather, that is a question of prioritizing conflicting projects,

which was certainly within the bailiwick of the VFPA as constituted under the CMA. I accept

that there may be an issue of whether the “prioritizing” function of the VFPA falls under its

proponent role for RBT2 or its regulatory role as regards DP4, and I will deal with that below;

however, for now, I do not consider this to be an attempt by the VFPA to undermine the DP4

project.

[203] As to the statement of the VFPA that “GCT is not engaging with the port authority in

relation to any expansion of its facility”, as stated earlier, the port authority cannot be expected to

suspend its development plans waiting for a particular proponent to engage its review process.

[204] GCT also points to the Issues Management Plan developed just before the service and

filing of the present application for judicial review, which, in addition to the financial

compensation of the VFPA executives which I will deal with later on, reveals, according to GCT,

the motivation behind the VFPA’s bias. GCT points to the statement made in the Issues

Management Plan, under Analysis and Assumptions: “Given that the proposed DP4 cannot be

built, according to the minister of fisheries in 2003, it is curious why GCT is proposing it.”

[205] GCT says that that statement is not true. From what I can tell, it may have been shown

not to necessarily be correct through the testimony of DFO during the Review Panel hearings

held a few months later, but what seems to be the case is that at the time the statement was

inserted in the document, the evidence is that the VFPA actually believed it to be true. The

statement was included in the Analysis and Assumptions section of the Issues Management

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Plan—in other words, the VFPA was speaking to itself and setting down what it believed to be

the state of affairs. This statement does not appear to me to be a series of talking points prepared

by a communications director to assist the VFPA in conveying its position to the public.

Accordingly, from my perspective, that statement confirms the statement of Mr. Xotta during his

cross-examination, to wit, that the VFPA truly believed the prohibitive effect of the 2003 DFO

letters.

[206] In addition, the Background section to the Issues Management Plan includes the

following:

GCT has begun a public campaign that includes, at least, the

following:

• Video of the proposed project showing the

expanded footprint (though the video description

states additional capacity can be handled on the

existing footprint)

• Robocalls to the Delta community, positioning DP4

as a “better way”

• Extensive government and stakeholder lobbying

• Public engagement, such as organization of

community and business roundtables

We can expect that GCT will continue to reach out to key

stakeholders, such as those who have registered to speak in support

of RBT2 at the upcoming public hearing.

[207] GCT argues that the Issues Management Plan equates to the VFPA setting out what it is

going to do to undermine DP4, and a further indication of a closed mind amounting to

impermissible bias on the part of the VFPA. I disagree. The evidence has me believe that, given

the preference of the VFPA for RBT2, GCT had undertaken its own campaign to sell DP4 to the

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public and the government. I would not expect anything less, and as mentioned earlier, that is

fair game for any commercial operator which needs public and government support to move

foreword with its development strategy; I see nothing wrong with such an approach. The VFPA

says that this is not about RBT2 vs DP4; GCT says the opposite, that the present proceedings are

all about RBT2 vs DP4. Whatever the true state of affairs may be, it does explain why the VFPA

felt the need to have a concerted approach so as to respond to what may have become a battle for

public opinion on further development of Deltaport. On the whole, and more to the point, I am

not convinced that the VFPA undertook either an open or a clandestine campaign to undermine

DP4. I have not been shown by GCT any statement in the Issues Management Plan that is

incorrect, apart from opinions which later may have been found to not necessarily be correct;

seeking to set the record straight is not evidence of insidious conduct.

[208] GCT also asks that I compare and contrast the statement made in the Issues Management

Plan to the effect that the Review Panel is not mandated to consider project need or alternatives

and therefore cannot make a recommendation that favours one project over another, on the one

hand, with the statement made by the VFPA to the Malahat Nation in its letter of May 25, 2020

to the effect that “[t]he independent federal review panel expressly considered [the decision of

the VFPA to reject DP4 for reasons of environmental and competition concerns] and held a day

of hearings specifically dedicated to alternatives. … The panel has now spoken and it has

supported the port authority’s conclusion to locate the terminal in deeper waters …”.

[209] I accept that the manner in which the VFPA expressed the role of the Review Panel as

endorsing the rejection of DP4 was imprecise; however, I am not convinced that it was

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determinative of any closing of the mind leading to impermissible bias on the part of the port

authority.

[210] The GCT also wants me to compare and contrast the Issues Management Plan with how

the board directed the VFPA during the board meeting of March 31, 2015 to review the DP4

project with objectivity and with an open mind. I have not been convinced that since 2015, the

VFPA has dealt otherwise with GCT and the DP4 project. Given that the VFPA had to respond

to a concerted campaign by GCT to sell DP4 to the public and the government, I see no

contradiction between the directive of the board in 2015 and the development of the Issues

Management Plan. On the whole, I find that GCT’s argument that the VFPA was somehow

strategically undermining DP4, and more so, that the VFPA was purposely mischaracterizing the

consequences of the 2003 DFO letters, is not supported by the evidence.

[211] Finally, GCT argues that a reasonable apprehension of bias arises from apparent

predeterminations, even on a less stringent test of the appearance of a closed mind. In particular,

GCT asserts that the reasons given in the March 2019 decision demonstrate that the VFPA made

a predetermined decision in favour of the RBT2 project and that its comments, made publicly,

suggest a pre-judgment or impartiality on its part (Chrétien v Gomery, 2008 FC 802 at paras 78

to 80 and 106, aff’d 2010 FCA 283 [Gomery] and Canadian Broadcasting Corp v Canada

(Human Rights Commission), 1993 16517 (FC) at para 43 [CBC]). Putting aside the fact

that the situations in both Gomery and CBC were significantly different from the matter before

me, under the circumstances, I am not prepared to find that the VFPA undertook a campaign to

undermine DP4 or that its statements as regards the effect of the 2003 DFO letters were made in

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bad faith, knowing them to be wrong. I am also not convinced that such public statements show a

closed mind leading to actual impermissible bias. As stated by Mr. Xotta during his cross-

examination, at the time the statements regarding the concerns over the 2003 DFO letters were

made, the VFPA thought them to be correct; I have not been convinced otherwise.

(iii)

The declaration of preference for RBT2 without a proper evidence-

based assessment

[212] Finally, GCT argues that in addition to issues with the stated rationale of the March and

September 2019 decisions and the tactical way that those decisions were orchestrated, the fact

that the VFPA stated that RBT2 was its preferred project without first conducting a formal,

evidence-based review of DP4 can only lead to a conclusion that the VFPA was biased in its

decision-making process in relation to DP4. GCT asks that I keep in mind that such dogged

preference for RBT2 emanates from the fact that there are people at the VFPA whose careers,

salaries, and legacy are predicated upon RBT2 being completed; they have been working on the

project since 2013 and thus have developed, says GCT, a mindset tantamount to bureaucratic

inertia in their dedication to that project.

[213] I should point out that GCT is not arguing that the VFPA’s regulatory role is to act as an

independent arbiter, weighing RBT2 against DP4, or that in conducting its regulatory functions,

the VFPA cannot have regard to the history of the projects, the port development priorities,

decisions and commitments already made by the VFPA, past discussions and exchanges between

the parties, the existing knowledge of both projects by the parties, or the stage of development of

RBT2, in which the VFPA had already invested time and energy as part of its statutory mandate

as commercial operator of the port. Rather, GCT argues that the port authority, before

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determining that RBT2 was in fact its preferred project—a decision that the port authority may

have made as part of its proponent role for RBT2—nonetheless had the obligation on its

regulatory side to allow DP4 to be reviewed under a fair, independent, objective, evidence-based

decision-making process, and failing to do so under the circumstances is evidence of

impermissible bias. Although at some point articulating that the issues of these proceedings are

very much centered around RBT2 vs DP4, GCT also says that for the purposes of determining

the VFPA’s bias here, it is not a question of weighing one project against another, but rather an

issue of one project not even being allowed on the scale.

[214] In any event, Mr. Grosman admitted in cross-examination to knowing that RBT2 was the

VFPA’s preferred project from the time he joined GCT in July 2017; the VFPA’s preference for

RBT2 was no secret well before GCT filed its PPE in February 2019; however, GCT argues that

it was not aware that such a preference amounted to a “shutting of the door” to the review of

DP4 without at least the prerequisite fair, independent, objective, evidence-based decision-

making process being undertaken so as to justify the preference, and asserts that proceeding in

the way it did was evidence of the VFPA’s bias against DP4, which only manifested itself with

the March 2019 decision.

[215] Again, I cannot agree with GCT. The March 2019 decision sets out in very clear

language the reason why the VFPA decided not to process GCT’s PPE through its PER Process.

[216] As I indicated earlier, the proposition that the VFPA closed its mind, an argument which

GCT has promoted throughout these proceedings as an indicium of impermissible bias, seems to

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me to rather be the natural consequence of the port authority making, rightly or wrongly,

commercial decisions, and simply wanting to move on. For the VFPA, moving forward with

RBT2 began in 2013—if we do not consider the work undertaken prior to the completion of

DP3—and was several years ahead on a development timeline than the DP4 project. It is not for

the port authority to delay making long term policy decisions on the development of port

infrastructure until a proponent is ready to submit its proposal, which in this case took place in

February 2019. Putting aside the issue of any breach of procedural fairness by the VFPA in not

allowing at least an initial assessment of GCT’s PPE once submitted on February 5, 2019, I have

not been convinced of any closing of the mind in the sense of creating impermissible bias on the

part of the VFPA in having determined and expressed, prior to assessing the PPE through the

PER Process, its preference for RBT2.

(b)

Failure to respect policy of separation of proponent and regulatory

functions

[217] GCT asserts that quite apart from whether the March and September 2019 decisions were

reflective of actual bias on the part of the VFPA, that the bias of the VFPA may be seen in the

manner in which it disregarded the admitted requirement on its part to keep its project proponent

role separate from it regulatory role.

[218] GCT argues that the VFPA recognizes the conflict of interest inherent in its dual roles as

proponent and regulator and assures stakeholders that it takes steps to have a clear separation of

the two functions to address this inherent conflict by making certain that those who work on the

proponent side for RBT2 do not cross-contaminate, through their involvement, the regulatory

role of the VFPA in respect of DP4.

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[219] In the midst of the submission of GCT’s PPE for DP4, the VFPA was also stick-handling

RBT2 through the regulatory process under the CEAA. In a letter dated February 22, 2019, to the

Review Panel—GCT points out that this letter was sent after the February 13, 2019, decision by

the VFPA executives not to process its PPE through the PER Process—meant to address the

ability of the VFPA to oversee and to direct compliance and how conditions would be enforced

in the event that RBT2 was approved to proceed, the port authority also addressed its dual role as

both proponent and regulator under the CMA. In the letter, Mr. Stewart, who is part of the

proponent side for RBT2, stated:

Port authorities are tasked with addressing the technical merits of a

project, including environmental impacts and mitigation. …

A Canada Port Authority’s role is to review project applications,

including required studies, assess the technical merits of the

application, and then make an evidenced-based permit decision. …

The [VFPA] will not authorize or allow a proposed project to

proceed if it is likely to result in significant adverse environmental

effects that cannot be mitigated. Project permit applications may

not be accepted if the port authority determines the project is not in

the best interests of Canada’s overall trade objectives.

Occasionally, like other federal agencies, a Canada Port Authority

is required to act as both permitting agency and project proponent,

typically on common-use infrastructure projects where no other

proponent would be forthcoming. To ensure the permit review

process is entirely objective, the [VFPA] ensures clear separation

of the regulatory and project proponent functions of the

organization. For example, projects reviewed by the [VFPA] are

conducted by environmental scientists and specialists who do not

work on port authority-led projects.

[Emphasis added.]

[220] GCT asserts that although admitting that this separation is a minimum requirement, the

evidence actually demonstrates that, in breach of its own standard of natural justice and

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procedural fairness, no such protections were implemented regarding DP4. GCT points to the

privilege logs that show that Mr. Stewart—who, in cross-examination, Mr. Xotta described as

the executive responsible for advancing RBT2 as well as other capital projects that VFPA was

developing—was involved in both the March and September 2019 decisions and that

Mr. Armstrong was, as GCT suggests, at the epicentre of the March 2019 decision despite his

role as counsel for the proponent side of RBT2. Mr. Xotta also confirmed that the separation of

functions described by Mr. Stewart was not reduced to a written policy of the VFPA and that no

document exists setting out how that separation is to take place, but that the procedures

associated with the project review were articulated in the Guide. GCT calls this a governance

failure exemplifying once again the closed mindedness of the port authority in relation to the

DP4 project; the element of bias is demonstrated, argues GCT, because after accepting that such

a “church and state” separation is needed in order for stakeholders to be afforded proper

procedural fairness, the VFPA secretly did the opposite, a fact discovered only after GCT

undertook serial efforts to extract the true record.

[221] I disagree with GCT. First, although GCT promotes the theory that both projects were

competing with each other, it seems to me that it was so only in GCT’s mind. More importantly,

I find that GCT is misapplying the principles addressed in Mr. Stewart’s letter to the Review

Panel. Again, context is important. The Review Panel was set up to review RBT2, and in the

February 22, 2019 letter, Mr. Stewart was addressing how the VFPA was to be set up in order to

review RBT2, a project where the VFPA itself was acting as a proponent. It may well be that

such a “church and state” separation would have been put in place had the VFPA moved forward

as the proponent of DP4, just as it was the proponent of DP3 and other large-scale projects of

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land reclamation in the Port of Vancouver, but the VFPA decided, in its discretion, that it did not

wish to move forward with DP4, preferring the RBT2 project to meet the growth in demand for

container terminal capacity, and I see nothing to suggest that it did so by breaching its own

expressed commitment to the separation of proponent and regulatory functions.

(c)

Are the VFPA decision makers biased as a result of any financial interest

in the development of the RBT2 project?

[222] As made clear by the Supreme Court in Old St Boniface, in addition to having a closed

mind to the point of intransigence, a disqualifying bias may also result from a conflict of interest

on account of financial interest in the decision to be made. At page 1196, Justice Sopinka stated:

I would distinguish between a case of partiality by reason of pre-

judgment on the one hand and by reason of personal interest on the

other. It is apparent from the facts of this case, for example, that

some degree of pre-judgment is inherent in the role of a

councillor. That is not the case in respect of interest. There is

nothing inherent in the hybrid functions, political, legislative or

otherwise, of municipal councillors that would make it mandatory

or desirable to excuse them from the requirement that they refrain

from dealing with matters in respect of which they have a personal

or other interest. It is not part of the job description that municipal

councillors be personally interested in matters that come before

them beyond the interest that they have in common with the other

citizens in the municipality. Where such an interest is found, both

at common law and by statute, a member of Council is disqualified

if the interest is so related to the exercise of public duty that a

reasonably well-informed person would conclude that the interest

might influence the exercise of that duty. This is commonly

referred to as a conflict of interest.

[Emphasis added.]

[223] GCT argues that the VFPA executives who made the decisions in respect of DP4, both on

the regulatory and the proponent side, were and are compensated based on the success of RBT2,

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thereby creating a direct financial conflict that precludes lawful consideration of DP4 and gives

rise to a reasonable apprehension of bias.

[224] Articles 1.1 and 1.2 of the Code of Conduct provide that its object “is to preserve and

enhance public confidence in the integrity and impartiality of directors and officers” of the

VFPA by “establishing clear conflict of interest rules”, and that the Code of Conduct is to be

interpreted in accordance with a series of general principles, to wit, that every director and

officer shall discharge his or her duties as regards the preservation and enhancement of public

confidence, that such discharge of duty may not necessarily be fulfilled by merely “acting in

accordance with the technical requirements” of the governing instrument, and that the mere

appearance of conflict, as opposed to actual conflict, may compromise public confidence and

trust in the integrity and impartiality of the VFPA.

[225] In addition, the VFPA’s Project and Environmental Review Policy [PER Policy] was

created, inter alia, so as to establish a PER Process that meets the VFPA’s responsibilities under

applicable legislation, makes certain that port development reflects environmental, economic and

social objectives, and provides efficient and effective service to VFPA stakeholders. Under the

PER Policy, the VFPA’s board of directors authorizes the President and CEO to establish

procedures and issue permits, approvals and/or authorizations pursuant to the PER Policy and

PER Process and to delegate this authority as appropriate to the VFPA executives and staff. In

addition, the PER Policy makes it clear that the PER Process is to be “guided by principles and

legal requirements of reasonableness, procedural fairness and ethical conduct.”

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[226] GCT argues that the VFPA’s executives as decision makers must be presumed to be

biased because of financial interest in the success of RBT2; a reasonable apprehension of bias

can be presumed where a judge or member of a tribunal has an interest in the matter that he or

she is called upon to adjudicate (Ireland v Victoria Real Estate Board, [1996] 1 WWR 349

at p 385).

[227] The VFPA argued initially that I should not consider this argument as GCT failed to

plead this issue in its amended notice of application for judicial review and is now precluded

from raising it (Tl’azt’en Nation v Sam, 2013 FC 226 at para 6 [Kenny Sam]; Air Canada v

Toronto Port Authority, 2010 FC 774 at para 80). That is of course the general principle;

however, as expressed by Justice O’Reilly in Kenny Sam, there is some room for discretion where,

for example, the new issue is related to those set out in the notice and are supported by the

evidentiary record, and where the respondent would not be prejudiced and no undue delay would

result (Kenny Sam at para 7; Al Mansuri v Canada (Minister of Public Safety and Emergency

Preparedness), 2007 FC 22 at paras 12-13). Here, I find that the prospect of the executives having a

financial interest in RBT2 is significant in the context of possible bias. Given that bias is the

overriding issue put forward by GCT, and the issue that permeates all others in this case, I think it

appropriate to exercise my discretion and address the issue.

[228] In this case, GCT submits that the decision-making of the VFPA was rife with a bias that

each of the decision makers could not avoid in that each of the executive team members had a

direct pecuniary interest in RBT2 being approved at the expense of DP4, and adds that at no time

did any member of the executive declare such conflict at the time the March and September 2019

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decisions were being contemplated. As an indicium of such bias and one more factor as to why

the “mind was closed” over at the VFPA with respect to DP4, GCT points to the VFPA 2020

Financial Report, which illustrates that medium-term incentive plan, being a three-year, cash-

based performance-based compensation, which GCT argues is specifically linked to the building

of capital projects, including RBT2.

[229] I find that GCT is misconstruing the description of the incentive plan. The passage cited

by GCT reads as follows:

The medium-term incentive plan aligns executive compensation

with completion of longer-term initiatives necessary to the port

authority’s strategic plan and the larger success of the port. To

ensure the port authority retains and motivates key talent over the

span of these multi-year projects, all executives are eligible for the

2019-2021 and future medium-term incentive plan grants.

The 2019-2021 and 2020-2022 grants awarded in 2020 (referred to

as “2020 Grant”) focuses on strategic capital projects to build

urgently needed container capacity (the Centerm Expansion

Project and Roberts Bank Terminal 2 Project) and road and rail

projects throughout the gateway. Collectively these projects are

critical to the ability of the port to meet Canada’s trade objectives.

[230] GCT reads the passage as suggesting that the executive members who rendered the

March and September 2019 decisions were biased as their financial compensation rested, at least

partially, upon the completion of RBT2. That is not the way I read the passage. Clearly,

performance matrices have been introduced into the executive remuneration package, as is

common with many companies looking to attract talent at the executive level. However, I do not

read the description of the package as performance incentives being based upon approving or not

approving any specific project; the mention of RBT2 is but a coincidence as that project was

already identified as one of the lead development projects undertaken by the Port of Vancouver.

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[231] It seems to me that had the VFPA also decided to move forward with DP4, that project

would also have been singled out in the passage upon which GCT relies to make its argument. In

this case, the VFPA’s Land Use Plan dated October 28, 2014—in effect when the March and

September 2019 decisions were made—identifies as one of its objectives the development of

RBT2, amongst other things, as part of the VFPA’s long-term strategy to meet projected growth.

It makes perfect sense, therefore, that it would be RBT2 that is identified in the description of the

executive package incentive plan as one of the relevant capital projects upon which the

performance matrices is based.

[232] GCT asserts that it does not matter what the financial interest is or how significant it is,

but rather that it exists. If I am to accept GCT’s argument, the VFPA executives are in financial

conflict every time they chose to move forward with any particular development project,

regardless of which one they chose; that cannot be right. As was the case before Mr. Justice

O’Reilly in Communities and Coal Society, the medium-term incentive plan in this case does not

reward project approvals directly; the motivation for the executives is not to select one project

over the other, but rather the see the project selected move forward in line with the port

authority’s statutory obligations and objectives. I find GCT’s indignation to be misplaced.

(d)

Contradictions in the VFPA’s positions as evidence of bias

[233] GCT asserts that the many contradictory positions of the VFPA reveal a desire to make

up the rules as it goes along, to say things when it is expedient to do so, thus evidencing its bias,

which is the inevitable result of those contradictions and untenable positions. GCT highlights the

following:

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The VFPA publicly asserts that separation is required between its proponent

i.

function and its regulatory function, but it failed to deliver on that requirement,

and has no written policy to secure compliance.

ii.

Although the PER Process sets out steps that will be taken to ensure evidence-

based, objective decision-making so that the regulatory function is exercised on

the merits, such a policy was not followed by the VFPA when it rejected GCT’s

PPE out of hand.

iii.

When GCT submitted its PPE on February 5, 2019, it was received and

distributed amongst VFPA management with the expectation, even internally, that

staff would begin the review of the proposal and that the PER Process would be

followed; however, that process was halted by the VFPA executives.

iv.

The VFPA’s claim that it is entitled to have a closed mind on the regulatory side

because of the structure under the CMA is at odds with its invitation to GCT to

make submissions on its purported bias in its letter of October 2, 2019.

v.

The VFPA invited GCT to re-submit its PPE in September 2019, yet asserts

before this Court that it has no ongoing role in respect of DP4 under the IAA.

vi.

Although the VFPA states that it is entitled to arrive at a decision preferring

RBT2 over DP4, no documents or analysis engaging with the merits of both

projects, or any evidence of any meetings or discussions reflecting this

comparison, can be found in the tribunal record.

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[234] I have already addressed the issues identified by GCT. I am of the view that any

purported contradictions or inconsistencies in the VFPA’s conduct is better dealt with in relation

to whether it breached procedural fairness by not respecting the legitimate expectations of GCT.

I see no element of impermissible bias on the part of the VFPA in the elements raised by GCT.

(e)

Final thoughts on the bias issue

[235] On the whole, and although I find, as I set out below, that the VFPA breached its

obligation of procedural fairness owed to GCT by not allowing GCT to address the VFPA’s

concerns within the regulatory process, I am not convinced that either the March or September

2019 decisions were reflective of impermissible bias on the part of the VFPA. The concern over

DP4’s timeline for coming on stream, if at all, had previously been expressed by the VFPA a

year earlier in its letter of February 2, 2018, to GCT; the VFPA outlined the environmental

hurdles that DP4 was expected to face in the regulatory approval process, and stated that when it

comes time to formally review the project in conjunction with the PER Process, the port

authority would have to consider the impacts of DP4 on overall port operations and in a

cumulative context with RBT2, and that regarding the issue of timing, the port authority would

have to recognize the very significant lead times required for the projects, and the increasing

need for more near-term capacity in the Port of Vancouver. Accordingly, the VFPA advised in

its March 2019 decision that it would not be processing GCT’s PPE through the PER Process at

that time but would be open to reviewing development plans for Deltaport when it could more

accurately project the need for incremental capacity beyond RBT2.

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[236] Although I will deal with this issue in greater detail when I address GCT’s claim of

breach of its legitimate expectations, I will say that a port authority under the CMA is a non-

adjudicative decision maker, and its regulatory role is tethered to its role as manager and operator

of the port. It seems to me that the March 2019 decision was more of a reflection of the VFPA

improperly putting its commercial foot ahead of its regulatory foot. Although this may be a result

of the overlapping structure created by Parliament in the manner that the CMA set up the VFPA,

it is not, in my view, a manifestation of actual impermissible bias. Commercial people will act in

commercial ways; that is not always a reviewable error.

[237] If Parliament gave port authorities commercial and operational responsibilities for a port

while at the same time giving them regulatory responsibilities, it could only be because the

regulatory functions must be undertaken alongside the role that the port authorities play in the

development of long-term strategic and logistical planning for the port so as to maintain

commercial competitiveness and facilitate trade, with port authorities at the same time having to

act as good stewards of the environment that they are managing. In the end, the VFPA is not, as

GCT argues, a competitor of GCT that is promoting it own project ahead of that of GCT; VFPA

is a port authority which has been authorized by statute to commercially run the Port of

Vancouver, including developing its own infrastructure, and it is ultimately for the VFPA to

decide which project gets to move to the head of the class. In a purely commercial setting, and

outside of any contractual rights, tenants do not normally have the right to impose on landlords

the obligation of having to consider the tenant’s further development projects. Here, I accept that

we are not in a purely commercial setting, and the administrative requirements inherent in the

VFPA’s regulatory role of the VFPA must be respected, however I make the point simply to

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underscore the context in which the VFPA was operating, which went to inform the manner in

which it developed its decision-making processes, and thereby whether the purported indicia of

bias to which GCT points can fairly support a finding of a reasonable apprehension of bias on the

part of the port authority. In this case, I find that such indicia cannot.

[238] Moreover, I do not see that back-tracking on whether to have the PPE proceed through

the PER Process a sign of bad faith or impermissible bias in any way. I can certainly understand

the March 2019 decision from a business perspective—I read it as the culmination of what has

gone on with respect to RBT2 and DP4 until that point, in particular the expression of the

VFPA’s concerns set out in its February 2, 2018 letter, save that the VFPA back-tracked on its

previous invitation to process GCT’s PPE through its PER Process. Rather, the problem lies not

so much in the reasons for the March 2019 decision, but rather, as I deal with below, in its timing

in relation to the regulatory, decision-making process that GCT had triggered in filing its PPE

through the PER Process portal. Here, the RBT2 train had been on the rails for some six years,

heading down the track of development, and on the whole, I am not convinced that the

March 2019 decision of the VFPA not to consider at that time a project that would add additional

capacity of 2 million TEUs when the need for such extra capacity beyond RBT2 was not

projected by the VFPA, was a sign of a closed mind on the part of the port authority in the sense

postulated by GCT.

[239] As regards the VFPA’s invitation of October 2, 2019 for GCT to make submissions in

relation to its claim of bias so that the port authority could address it, GCT asserts the invitation

was yet another tactical decision; it argues that the VFPA has no process to deal with a situation

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where its bias is raised, that at no time during the present proceedings has the VFPA articulated a

process on how such a review of a claim of bias was to be undertaken, and that in any event it

would have been the same executive members against whom the allegation of bias was made that

would have ruled on their own bias. I put it to GCT’s counsel whether in fact what the VFPA

was inviting GCT to do was indeed to suggest an acceptable process whereby the port authority

could address whether there existed any impermissible bias on its part, and if so, what steps need

to be taken to alleviate it. GCT’s response was that this was not the proper way for a statutory

decision maker to address its own bias. However, context is important, and we must not forget

that the VFPA is not set up as a traditional regulatory boards or tribunals. GCT provided no

example of a process for how a statutory decision maker of the type of the VFPA was to deal

with allegations of its own bias, yet took issue with the fact that the VFPA was suggesting that it

may rule on its own bias while there was a live application for judicial review to deal with the

issue. A tribunal’s ability to rule on its own bias is a prominent feature of administrative law (Lin

at para 6; CB Powell Limited at para 33; Eckervogt v British Columbia, 2004 BCCA 398).

[240] GCT also takes issue with the fact that it was only with the affidavit of Mr. Xotta, filed in

August 2021 as part of the present proceedings, that it first became aware that it was the VFPA

executives who made the decisions reflected in the March 2019 and September 2019 decisions;

until then, the decision-making process was “opaque” according to GCT. For my part, I see

nothing nefarious in the fact that the VFPA only disclosed that it was its executive team that

made the decisions reflected in the March 2019 and September 2019 decisions in the affidavits

filed in support of its defence of GCT’s claim; I am not quite sure what earlier opportunity would

have been more appropriate, notwithstanding that the March and September 2019 decisions were

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signed by a VFPA executive. GCT concedes that it was the VFPA board of directors that would

have delegated the decision-making to the port authority’s executives; it therefore only makes

sense that it would have been the members of the VFPA’s executive team who made the relevant

decisions.

[241] According to GCT, the rescission of the March 2019 decision by the September 2019

decision and the shielding of the documents that were before the VFPA executives who made

both decisions behind a wall of solicitor-client privilege further demonstrate the VFPA’s bias

and do not cure the procedural fairness issue arising from the March 2019 decision. I put it to

GCT counsel during the hearing whether or not it was still open to the VFPA, after an

application for judicial review was instituted regarding the March 2019 decision, to simply have

a change of heart and rescind that decision. GCT asserted that once a matter was before the

courts, the concept of self-help was no longer in the hands of the VFPA and that the

September 2019 decision was a blatant litigation strategy by the VFPA, which was somehow

gaming the system in an attempt to shield itself from judicial review. The furthest GCT would go

was to concede that there could be circumstances where a port authority feels that it genuinely

made a mistake and rescinds an earlier decision, but GCT’s counsel defied this Court to find a

VFPA process that deals with rescission in the bias context. In essence, GCT is arguing that the

March 2019 decision could not be rescinded in the context of bias, thus the VFPA is biased

because it rescinded its March 2019 decision. I cannot agree as it seems to me that GCT is

involved in an exercise of circular reasoning.

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[242] In any event, this is again a tempest in a teapot. GCT argues that it could accept a

scenario where a tribunal has a process for reconsideration and, in that context, finds that it made

an error and rescinds an earlier decision. However, here there is an absence of such a process,

thus no control and no ability to review because the tribunal record does not contain any

document that was before the VFPA executives when the September 2019 decision was made.

Again, I have not been convinced by GCT. I accept that the PER Process was not followed with

the March 2019 decision, but that was the very reason the VFPA issued the September 2019

decision. I also accept that there is no process for reconsideration of a decision of the VFPA

other than judicial review, but if there was to be such an internal process, it would be for the

benefit of the stakeholder seeking reconsideration of a decision of the VFPA. I have not been

convinced that the VFPA requires a process for itself to reconsider its own decision.

[243] On a final note on the issue of bias, GCT argues further that there can be no other way to

interpret all the purported indicia of bias other than to find that the VFPA had a closed mind with

respect to DP4, and that a closed mind necessarily implies actual bias. GCT asserts that it is one

thing to exercise a discretion to refuse to approve a project after considering it on its merits,

pursuant to the VFPA’s regulatory obligations under the CMA, but it is quite another to purport

to exercise such a discretion to refuse to even consider DP4 on its merits; all that GCT is

required to do, it argues, is to demonstrate that there exists a regulatory regime that the VFPA is

tasked by statute with administering—a regime that has obligations of fairness, impartiality,

transparency, and objectivity—and which does not afford the port authority the right to have a

closed mind and not even consider the project on an evidence-based basis. I agree with GCT, but

find that although a purported exercise of discretion to refuse to consider DP4 on its merits may

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constitute a breach of procedural fairness, it does not necessarily imply that the VFPA executives

had a closed mind in the sense of creating an impermissible bias against DP4 in the present

context. Rightly or wrongly, the VFPA may well have thought themselves justified to come to

the March 2019 decision for the very reasons set out therein, reasoning which, again, rightly or

wrongly, does not necessarily imply impermissible bias on its part.

(2)

Has the VFPA breached GCT’s legitimate expectations?

[244] GCT made it clear before me that it is not arguing that once its PPE was submitted

through the PER Process portal, the VFPA had the obligation to see the review process through

to its completion before coming to a decision on the project which, it admits, the port authority

already knew well prior to the submission of its PPE. Rather, what GCT is arguing is that

engaging the VFPA on February 5, 2019, as a statutory decision maker undertaking a public law

function that has administrative law requirements, with obligations of procedural fairness,

objectivity and transparency, required the port authority to dedicate the needed resources in order

to provide some semblance of consideration on the merits of the proposal.

[245] GCT argues that the entire structure of the PER Policy is designed to deal with its PPE

being allowed into the process, and thus, there is no room within the delegation, procedures and

process that contemplates the VFPA being able to “shut the door” and not allow GCT to engage

the PER Process. GCT asserts that the VFPA’s closed mind in dealing with the DP4 project

thwarted the legitimate expectations that it, and the port community, had that the VFPA would

abide by the PER Process that it itself had established, and whereby, as part of that review

process, the VFPA was expected to confirm the category of review, appoint a project lead and

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complete tactical studies, and that once GCT’s application was considered and confirmed

complete, the technical review would go through and a final decision would be made, with the

project permit being issued with conditions, if appropriate; DP4 should have been allowed to

enter the PER Process but, as argues GCT, the VFPA summarily refused, with the March 2019

decision, to allow its PPE to continue through the review process in good faith, and in doing so,

barred the door to any consideration of the DP4 project.

[246] The VFPA argues that I should not consider GCT’s argument regarding the doctrine of

legitimate expectations as GCT did not specifically plead it in the amended notice of application

for judicial review, raising it for the first time in its memorandum of fact and law. In any event,

argues the VFPA, the PER Process does not create a substantive right on the part of an applicant

to have its proposal considered, but is simply a non-binding guide provided to assist project

proponents in making their application; in fact, the Guide contains a disclaimer on the first page,

which reads: “This application guide and its supporting documents are provided as information

and should not be taken as scientific, business, legal or other professional advice”. The

introduction states: “this guide is provided for information purposes only and may be updated

from time to time without notice”. Notwithstanding the objection raised by the VFPA, for my

part, I find the issue important enough that it must be addressed, in particular considering the

history of this matter and the relationship of the parties.

[247] The doctrine of legitimate expectation was set out by the Supreme Court of Canada in

Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paragraphs 93

to 97:

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[93]As this Court noted in Dunsmuir, at para. 79, “[p]rocedural

fairness is a cornerstone of modern Canadian administrative

law. Public decision makers are required to act fairly in coming to

decisions that affect the rights, privileges or interests of an

individual.” The Court’s comment that “[p]rocedural fairness has

many faces” (Dunsmuir, at para. 77) is also relevant to this case.

[94]The particular face of procedural fairness at issue in this

appeal is the doctrine of legitimate expectations. This doctrine was

given a strong foundation in Canadian administrative law in Baker,

in which it was held to be a factor to be applied in determining

what is required by the common law duty of fairness. If a public

authority has made representations about the procedure it will

follow in making a particular decision, or if it has consistently

adhered to certain procedural practices in the past in making such a

decision, the scope of the duty of procedural fairness owed to the

affected person will be broader than it otherwise would have

been. Likewise, if representations with respect to a substantive

result have been made to an individual, the duty owed to him by

the public authority in terms of the procedures it must follow

before making a contrary decision will be more onerous.

[95]The specific conditions which must be satisfied in order for

the doctrine of legitimate expectations to apply are summarized

succinctly in a leading authority entitled Judicial Review of

Administrative Action in Canada:

The distinguishing characteristic of a legitimate

expectation is that it arises from some conduct of

the decision-maker, or some other relevant

actor. Thus, a legitimate expectation may result

from an official practice or assurance that certain

procedures will be followed as part of the decision-

making process, or that a positive decision can be

anticipated. As well, the existence of administrative

rules of procedure, or a procedure on which the

agency had voluntarily embarked in a particular

instance, may give rise to a legitimate expectation

that such procedures will be followed. Of

course, the practice or conduct said to give rise to

the reasonable expectation must be clear,

unambiguous and unqualified.

…

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[96] In Mavi, Binnie J. recently explained what is meant by “clear,

unambiguous and unqualified” representations by drawing an

analogy with the law of contract (at para. 69):

Generally speaking, government representations

will be considered sufficiently precise for purposes

of the doctrine of legitimate expectations if, had

they been made in the context of a private law

contract, they would be sufficiently certain to be

capable of enforcement.

[97]An important limit on the doctrine of legitimate expectations

is that it cannot give rise to substantive rights (Baker, at

para. 26; Reference re Canada Assistance Plan (B.C.), 1991

74 (SCC), [1991] 2 S.C.R. 525, at p. 557). In other words,

“[w]here the conditions for its application are satisfied, the Court

may [only] grant appropriate procedural remedies to respond to the

‘legitimate’ expectation” (C.U.P.E. v. Ontario (Minister of

Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131.

[First emphasis added; second and third emphasis in original.]

[248] At the outset, I find that the manner in which GCT approached the doctrine of legitimate

expectations would suggest a merger of such a doctrine with the duty of procedural fairness,

whereby a breach of the doctrine necessarily leads to a breach of the duty; such expression of the

doctrine is incorrect. The doctrine of legitimate expectations is but one factor meant to inform

the content or scope of the duty of fairness, a duty that varies from case to case (Baker at paras

23-27). The content of such a duty must also be determined in conjunction with other factors,

and in particular, the statutory scheme which created the VFPA.

[249] Also, the doctrine of legitimate expectations cannot give rise to substantive rights;

representations giving rise to the doctrine must be procedural in nature and must not conflict

with the decision maker’s statutory duty (Canada (Attorney General) v Mavi, 2011 SCC 30 at

para 68). As stated, the VFPA argues that the PER Process only provides guidance on the

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procedure to be followed, and any claim or expectation that a project application would be

assessed through the PER Process could only be a substantive right, if at all, and under the

circumstances, may well dilute a port authority’s statutory duty to determine the projects that

form part of the long-term strategic plan for the port. I agree. If I accept that the PER Process

creates an obligation on the part of the VFPA to fully process any proposal under any

circumstance, that would mean that any project proponent would be able to force the port

authority to commit resources to reviewing an application for, say, a new liquid bulk terminal,

when the addition of such a terminal is inconsistent with the commercial direction the port

authority wishes to take at a particular time and for a particular area of the port, even where,

quite possibly, the development of a new liquid bulk terminal at some point in the future is

consistent with the goals, objectives, policy directions and land use designation included in the

port authority’s Land Use Plan. To do so would be tantamount to the tail wagging the dog,

especially where, as is the case here, the proponent knew of the port authority’s preference for

another project well before it submitted its PPE.

[250] However, GCT is not arguing that it has substantive rights such as a right to a specific

outcome or that its legitimate expectations extend to having the right to see its proposal for DP4

be run through the entire PER Process before the VFPA rendered its decision; what GCT is

asserting is that once the PER Process is engaged, procedural fairness dictates that its PPE not be

dismissed out of hand, in particular where the VFPA previously confirmed its right to access the

PER Process. The VFPA does not seem to take issue with that aspect of GCT’s argument and

concedes that although the PER Process cannot give rise to substantive entitlements, it may

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engage the right to procedural fairness as part of the VFPA’s regulatory, decision-making

function.

[251] I accept that the Guide provides that before an existing tenant is to file its PPE, it should

first review its property agreement “to ensure the proposed works and uses are permitted or if

landlord consent or an amendment to an agreement is first required”; however, I do not read this

guidance as a condition precedent to engaging the VFPA’s regulatory, decision-making process

for projects requiring the port authority’s review. Prior to the formal submission under the PER

Process, any discussions between project proponents and the VFPA regarding a project, or any

meetings or project presentations by proponents, would not necessarily engage the decision-

making role of the port authority for such projects. Regardless of the previous discussions it may

have had with the VFPA, and the various presentations it made regarding DP4, I agree with GCT

that the VFPA had not made a decision regarding DP4 and did not have to until its regulatory

role as a statutory decision maker was engaged. It is the engagement of the port authority’s

regulatory, decision-making function—with the filing of a preliminary project review application

under the PER Process—which triggers the duty of procedural fairness, to which any project

proponent has a right. As stated by the Supreme Court in Baker: “The fact that a decision is

administrative and affects ‘the rights, privileges or interests of an individual’ is sufficient to

trigger the application of the duty of fairness” (Baker at para 20; Cardinal v Director of Kent

Institution, [1985] 2 SCR 643 at p 653).

[252] Consequently, with GCT filing its application under the PER Process, I find that the

VFPA owed a duty of procedural fairness to GCT in respect of its PPE. That said, the next issue

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is the content and scope of such a duty. As instructed by the Supreme Court in Baker, the content

and level of the duty of fairness varies from case to case depending upon applicable factors

(Baker at paras 21 to 27). As made clear by the FCA in Canadian Pacific Railway Company, in

assessing a procedural fairness argument, a court is required to consider whether the procedure

was fair having regard to all of the circumstances, including the Baker factors (Canadian Pacific

Railway Company at para 54). In particular, and relevant in this case, one of the factors to

consider in assessing whether there was a breach of procedural fairness in the VFPA putting an

end to the PER Process review of GCT’s PPE when it did includes, as indicated earlier, the

“nature of the statutory scheme and the ‘terms of the statute pursuant to which the body

operates’” (Old St Boniface at p 1191; Baker at para 23).

[253] As stated earlier, the PER Policy makes it clear that the PER Process is to be “guided by

principles and legal requirements of reasonableness, procedural fairness and ethical conduct.” In

addition, the PER Policy contains a “Procedures” section, which provides, inter alia, that the

President and CEO of the port authority is to establish procedures and standards to guide and

administer the PER Process, which is to apply to all physical works and activities within

VFPA-managed lands and waters, and which also ensures that each proposed project reviewed

under the process receives a level of assessment sufficient to determine compliance with relative

requirements. I should also add that the guiding principles of the PER Process indicate that the

process is to be transparent, apply the appropriate level of review relative to any potential

impacts, and provide for the efficient use of resources.

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[254] As set out in the Guide, the PER Process has six steps, beginning with (1) the submission

by the proponent of the PPE through the VFPA’s project and environmental review portal, (2)

the assessment of the PPE, (3) submission of the full project application, (4) once the application

is considered complete, the application is reviewed, (5) a project decision is made, and (6) if

allowed, permitting conditions are issued. In this case, the VFPA acknowledged GCT’s right to

engage the PER Process in its February 2, 2018 letter. Moreover, upon submission of the PPE a

year later, an internal VFPA email circulated the PPE and indicated, consistent with Step 2 of the

process, that a team leader would be named and that staff was to be undertaking a review of the

preliminary submissions. It is at the implementation stage of Step 2 where, in the words of GCT,

everything ground to a halt. Consequently, it is what happened between then and the March 2019

decision that is at issue.

[255] The Guide indicates that the process is to apply the appropriate level of review relative to

any potential impacts and provide for the efficient use of resources. The Guide also provides that

the PER Process is meant to ensure that proposed projects are “carefully considered in the

process of determining if they should proceed.” Careful consideration does not imply a complete

six-step assessment of the proposed project in all cases. If an element in a proposal is identified

early by the port authority as being a non-starter, say, for example, where by-laws or regulations

prohibit development in the proposed area of a project of the nature of the proposal, allowing the

review process to proceed to the full application stage will not change matters and may not serve

any purpose, and thus would not be an efficient use of resources. Although I agree with the GCT

that the VFPA must “do what they say they will do”, commercial efficacy has a role to play in

the manner that the review process is undertaken.

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[256] Likewise, I can certainly envisage a situation where the commitment of resources to

assess beyond the preliminary review stage a project which has already formed the subject matter

of lengthy discussions, previous consideration and formal presentations by its proponent to the

port authority’s directors and executives, may be unnecessary in the context of a fair process, and

where it would not be unreasonable or a breach of procedural fairness for the port authority to

postpone or cut short its protracted regulatory review process, and even more so where the

VFPA’s own long-term strategic plan includes another similar project.

[257] That said, however, having a proponent engage the decision maker in its regulatory role

should be the right of all proponents. As stated, the PER Process is the VFPA-created portal

through which project proponents engage the VFPA’s decision-making regulatory regime for the

assessment of projects requiring the port authority’s review, and once a project proponent

triggers the PER Process, the port authority could not simply give the proposal short shrift.

[258] Looking at the Baker factors, which inform the content of the duty of procedural fairness,

I accept that the nature of the decision being made by the VFPA is one of a non-adjudicative

decision maker, with little resemblance to judicial decision-making, thus rendering it more likely

that commercial considerations in how and to what extent the process is followed come into play.

This is consistent as well with the nature of the statutory scheme as outlined earlier. The role of

the VFPA within the statutory scheme, its letters patent and other indicia as the commercial

operator of the port would also tend to support the proposition that commercial considerations

and the need for the efficient use of resources must play a role in the determination of the duty of

fairness underpinning the March 2019 decision, keeping in mind that any such commercial

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considerations must operate within a regulatory context once the PER Process is engaged. There

is also no doubt that moving forward with DP4 is of financial importance to GCT as it would

create a significantly larger footprint for GCT within the Port of Vancouver, an issue, as

mentioned earlier, which is also of concern for the VFPA. That said, a financial interest is much

lower on the scale in determining the scope of procedural fairness than, say, a right to freedom or

another Charter protected right, and GCT has not gone as far as to suggest that its economic

livelihood is dependent on the decision to move DP4 forward, whether locally or even

internationally.

[259] The determination of when the review process can legitimately be cut short, if at all, so as

to remain procedurally fair is, as set out in Baker, very much subject to a case-by-case

determination of the surrounding circumstances. I agree with GCT that neither the CMA, nor its

regulations, nor the VFPA’s letters patent grant authority for the port authority to refuse to

process its PPE through the project review regulatory process that the port authority has created;

it asserts that the delegated authority was for a process—not a refusal to enter into the process,

which would otherwise require clear language—and that transparency and consistency of

treatment of applications are the hallmark of what the port stakeholders should expect. However,

there is also nothing in the CMA, the letters patent, or the delegation under the PER Policy

requiring the VFPA to run all projects through all the phases of the PER Process. Rather, it

seems to me that what is required, as stated earlier, is that the procedures and standards ensure

that each proposed project reviewed under the process receives a level of assessment sufficient to

determine compliance with relative requirements, requirements that include, amongst other

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things, the commercial needs of the port and the fulfilment of long-term planning commitments

and strategies.

[260] GCT cites North End Community Health Association v Halifax (Regional Municipality)

[North End Health], 2012 NSSC 330 at paragraph 52, for the proposition that a duty to act in

accordance with legitimate expectations is owed, “particularly where the decision-maker has

created a procedure which it says it will follow”. I agree that legitimate expectations, as a factor

under Baker, could heighten the degree of procedural fairness owed by a decision maker to

where, without anything else, a failure to follow such procedures will amount to a breach of

procedural fairness; that was the case in North End Health; however, that is not the case here. In

this case, one cannot deny that other factors must come into play, including the history of

development of the area around the proposed DP4 project and the engagement of the parties, as

well as the statutory scheme under the CMA, the port authority’s role as a non-adjudicatory

regulator, and the commercial purpose for its continuation.

[261] I should also point out that a PPE is meant to be, as described by GCT, a very high level

description of the proposed project. If the VFPA is to cut short the review process, its decision

for not moving forward with a project must nonetheless be reasonable; I can imagine a decision

of the port authority to refuse to complete the review process of a proposed project being set

aside by a court on judicial review where the very foundation of the refusal could only

reasonably have been ascertained through the completion of the review process. That is not the

case here and, in fact, not the argument advanced by GCT.

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[262] That said, GCT must be allowed to know the case that it must meet, and this within the

regulatory process created with the triggering of the PER Process. As mentioned, prior to the

formal submission under the PER Process, any discussions between project proponents and the

VFPA regarding a project, or any meetings or project presentations by proponents, were outside

the port authority’s regulatory role, and would not necessarily engage the right to procedural

fairness. Although the VFPA may have the right to exercise its discretion so as to put an end to

the review process at a certain point, did the VFPA act fairly in “halting” the review process

when it did? In fact, during his cross-examination, Mr. Xotta confirmed that the VFPA did not

engage any of the steps of the PER Process, I take it, beyond Step 1.

[263] Step 2 of the PER Process is the preliminary review stage, which includes, amongst other

things, the assignment of a port authority project lead, meeting with proponents to discuss the

project, and the identification by the port authority of additional information or studies that may

be required to support a complete application. It seems as though that stage is meant to act as a

clearing house, initially vetting a preliminary project review application at a high level to spot

any non-starters, for the determination of the appropriate level of review and for the initial

meeting with the proponent to address, amongst other things, deficiencies, concerns and the

requirements for the project prior to moving to the full application submission and assessment

stage, where the heavy lifting is to take place.

[264] Here, there was no indication of any concerns expressed to GCT between the time it

engaged the port authority’s regulatory decision-making process and the March 2019 decision

that would have allowed the VFPA to engage GCT in how it was proposing to address the

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VFPA’s concerns prior to the review process being shut down. In his cross-examination,

Mr. Xotta suggested that the concerns were provided to GCT with the February 2, 2018 letter. As

regard the reason why GCT’s PPE was halted before proceeding to Step 2, Mr. Xotta also stated

as follows:

Q. Somebody stopped the process that Mr. Yeomans thought he

was moving forward with, correct?

A. Again, the project did not proceed through the subsequent

phases. In other words, it stopped at step 2.

Q. Well, it did not get going in step 2, did it?

A. That’s correct.

Q. And it didn’t get going in step 2 because somebody at VFPA

told Mr. Yeomans and/or you not to do so, correct?

A. The PPE failed to fundamentally address the issue that was

referred to in [the February 2, 2018 letter], which is the timing of

projects conflicting with other ones.

[265] In my view, every proponent has the right to engage the decision maker acting within its

regulatory capacity, and the refusal of a decision maker to engage with the process that it itself

created to trigger its regulatory function would be a breach of procedural fairness. Although I

accept that the February 2, 2018 letter may have been the VFPA’s effort to put its concerns to

GCT, it was done prior to GCT engaging the port authority’s regulatory process. In this case,

GCT must be allowed to know the case that it must meet, and this within the regulatory process

created with the triggering of the PER Process. Under the circumstances, allowing the process to

move to the preliminary review stage by appointing a project lead and having the discussion and

exchange with GCT within the regulatory context would have been, in my judgment, what the

duty of fairness called for under the circumstances. That does not mean that the VFPA must

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undertake self-induced amnesia in its consideration of DP4. It would make little commercial

sense for the preliminary assessment process to begin from scratch every time an application is

made under the PER Process; the port authority should be able to draw on its previous

knowledge and discussions and exchanges with the proponent about a proposed project in

determining whether to move beyond the preliminary project review stage.

[266] I note in particular that following GCT’s submission of its PPE, the application was

distributed internally amongst VFPA management confirming that staff would be doing an

internal review over the coming days or weeks. The email highlights that GCT’s proposal was

intended to be a two-stage development and that “no doubt, a number of initial meetings with

GCT will be required.” As stated earlier, on February 7, 2019, the VFPA acknowledged receipt

of the PPE and confirmed to GCT that staff “will undertake a review of the submission to better

understand the project and determine if our submission criteria has been satisfied in order to

continue processing.” It also appears that the proposed meeting for February 13, 2019, was

deferred on account of VFPA staff not having completed their review of the information

submitted by GCT, although on February 15, 2019, the VFPA confirmed that GCT’s request and

submission materials were before VFPA senior management. In the end, it is not clear whether,

or to what extent, if any, VFPA staff undertook their initial review of GCT’s submission.

[267] Although the PPE is meant to be a high-level description of the project, it did provide

insight regarding, amongst other things, the expectations of GCT undergoing PER Process

review, a description of the project and its proposed location, project context and rationale, key

elements of project scheduling and regulatory engagement, stakeholder outreach and, in

Page: 145

particular, environmental mitigation efforts and commitments. However, all the evidence

establishes is that a project lead was not assigned for DP4, that no meeting took place between

the VFPA and GCT, and that at no time was GCT advised of any concerns specifically

addressing its submissions. The VFPA says that the deliberation of its executives is reflected in

the March 2019 decision; however, I find that this was insufficient under the circumstances

and—putting aside any issue of reasonableness and failure to engage with GCT’s submissions—

a breach of the port authority’s duty of procedural fairness was owed to GCT.

[268] Given confirmation of the initial review by the VFPA, the legitimate expectations of

GCT weighed even more heavily in the determination of the scope of the duty for procedural

fairness. There is no doubt that the VFPA has the right, and I dare say the obligation, to set

development priorities for the Port of Vancouver and, wearing its commercial hat, to cease the

review of a project which is inconsistent with such priorities at the time, and which may be

riddled with other concerns—concerns which, I might add, were expressed in the March 2019

decision. However, before ceasing such review, it was incumbent upon the VFPA, wearing its

regulator’s hat, to put those concerns to GCT within the framework of the regulatory process,

where the duty of procedural fairness is engaged, and at least at a stage where, on the spectrum

of efficient and justifiable use resources, the port authority is still at the lower end of the usage

metre. In fact, in his cross-examination, Mr. Xotta conceded that the intention of the PER

Process is to also “help inform potential applicants of the depth of analysis and questions that

might arise in the process.” This must be undertaken within the scope of the port authority’s

regulatory, decision-making process, regardless of the commercial discussions that may have

taken place prior to the formal engagement of that process.

Page: 146

[269] It may also well have been that following the completion of the preliminary project

review stage, and the expected meeting between the parties, no further material addressing those

issues or concerns would have been submitted by GCT as part of its more fulsome application;

however, the process does envisage at an early stage for proponents to discuss those concerns

with the port authority wearing its regulator’s hat, during which time the VFPA may well

identify information that would be required if the process was to continue. Here, that part of the

process was not fully undertaken. I accept that GCT was aware of the concerns that the VFPA

had with DP4 well before February 5, 2019, and, as conceded by GCT before me, the nature of

DP4 did not change significantly between the time GCT began discussing the DP4 project in

detail with the VFPA in 2016 and the March 2019 decision. I also accept that the VFPA had put

GCT on notice on February 2, 2018, regarding how it would view any formal application for

assessment of DP4; however, the submission of the PPE through the PER Process was the first

formal submission of DP4 by GCT to the VFPA. However as stated, up to that point, any

discussions and concerns raised by the VFPA, such as those in the February 2, 2018 letter, were

expressed prior to the triggering of the regulatory decision-making process and outside the

protections afforded by such a process by its very nature—the February 2, 2018 letter contained

no decision, and accordingly, could not form the subject matter of an application for judicial

review.

[270] Also, it is possible that the March 2019 decision would have met the requirements for

procedural fairness had it been issued after the completion of the preliminary review stage,

where the parties were to engage, for the first time, with the formal submission of GCT, but it

was not; the VFPA simply jumped the gun.

Page: 147

[271] On the whole, I find that the VFPA breached its duty of procedural fairness in not having,

in this case, undertaken the tasks set out in Step 2 of the PER Process, in not having proceeded to

review GCT’s PPE at least through the preliminary review stage and, rather, in issuing its

March 2019 decision when it did.

[272] GCT further argues that I cannot separate the issue of bias from the issue of procedural

fairness and that if I were to find that the VFPA breached procedural fairness by refusing to

assess its PPE through the PER Process without first having reviewed it, such conduct was

tantamount to an act of pre-judgment which could only be attributable to a closed mind. I

disagree with GCT. As stated, I see this more as the VFPA executive team improperly putting its

commercial foot ahead of its regulatory foot, relying on what it knew, or at least thought it knew,

of the DP4 project and the manner in which it would affect RBT2, without allowing that

determination to be made within the regulatory process which any proponent, GCT included, had

a right to engage.

[273] GCT also argues that according to Mr. Xotta, the decision not to move forward with

processing GCT’s PPE was made in a meeting of the executives on February 13, 2019, yet on

February 15, 2019, the VFPA advised GCT that the matter was before senior management—

which I assume to be the VFPA executives—and then it took another two weeks to issue the

March 2019 decision. I am not sure what to make of GCT’s insinuation, however I find nothing

untoward in a decision having been made by the VFPA executives not to move forward with the

review process and then, given the obvious magnitude of the decision, for the decision to be

reviewed, and then for the VFPA to take the time needed to draft the appropriate response—

Page: 148

possibly even seeking legal advice regarding its drafting. In addition, as I stated earlier, the

paucity of documents evidencing the decision-making process is not unusual, in my experience,

in the context of this matter.

[274] That said, and given my finding of no bias on the part of the VFPA with respect to its

decision-making process, I also find that any breach of procedural fairness was corrected with

the September 2019 decision, whereby the VFPA advised, following the enactment of the IAA,

that it was rescinding the March 2019 decision and that port staff would be in contact with GCT

to re-engage the PER Process. Clearly, the VFPA continued to have jurisdiction under the

permitting process, save that with the enactment of the IAA, its role during and following the

impact assessment process of the review would henceforth be limited.

[275] I also find that the September 2019 decision corrects any concerns with the

reasonableness of the March 2019 decision. In particular, I return to the February 22, 2019 letter

from Mr. Stewart to the Review Panel, where he stated that the VFPA “will not authorize or

allow a proposed project to proceed if it is likely to result in significant adverse environmental

effects that cannot be mitigated” and that “[p]roject permit applications may not be accepted if

the port authority determines the project is not in the best interests of Canada’s overall trade

objectives.” Here, the landscape has now changed and environmental assessment will be

undertaken under the IAA, with the decision of the Agency informing the remaining permitting

process under the PER Process. Although it may well be that the port authority has the discretion

not to accept a project permit application if the port authority determines that the project is not in

the best interests of Canada’s overall trade objectives, that is not the reason why the VFPA

Page: 149

refused to allow GCT’s PPE to be run through the PER Process. The September 2019 decision

rescinding the March 2019 decision and inviting GCT to re-submit its PPE—arguably with any

amendments to take into consideration the change in the regulatory landscape brought on by the

enactment of the IAA—corrects any reviewable errors in the first decision.

C.

Mootness and prematurity

[276] GCT does not truly address the issue of mootness other than to say that the matter is now

res judicata. As I mentioned earlier, I disagree, yet I determined that the issue of mootness and

prematurity were intrinsically bound to the issue of bias. Having now considered the bias issue

and found no impermissible bias on the part of the VFPA, the issues of mootness and

prematurity return.

[277] GCT conceded before me that if I were to find no evidence of impermissible bias or no

reasonable apprehension of bias on the part of the VFPA, it would be difficult for GCT to argue

that the remedies it is seeking should be granted. I agree. In fact, GCT does not argue that I

should nonetheless consider the matter further under the principles set down by the Supreme

Court in Borowski.

[278] Considering the effect of the September 2019 decision, I am of the view that the issues

surrounding the March and September 2019 decisions are now moot as there no longer exists a

live issue that would affect the interests of the parties. First, I find that the status of GCT’s PPE

has been reset with the September 2019 decision. Also, the repeal of the CEAA and the

enactment of the IAA has reshaped the landscape and regulatory relationship between the port

Page: 150

authority and GCT, with the need to significantly engage on DP4 having been punted well down

the field of time.

[279] Given the change in legislation, any perceived preference—even assuming that such a

preference was impermissible—is no longer a live issue if the VFPA is one day called upon to

consider DP4 under its PER Process because RBT2, under the IAA, will necessarily form part of

the impact assessment process of DP4; unlike the Review Panel under the CEAA, the review

panel under the IAA is required to consider several factors, including the need for a Designated

Project, alternative means, and the cumulative effects of other projects to be carried out (IAA at

ss 22(1)(a)(ii), (d) and (f)). Although the VFPA retains permitting authority, it is no longer the

port authority but rather the Agency under the IAA that would decide whether an impact

assessment is required, as well as the any adverse effects of DP4.

[280] Given my finding that the matter has become moot, I need not address the issue of

prematurity.

D.

Does this Court have the jurisdiction to grant the relief sought by GCT?

[281] Given my findings that the evidence does not support the existence of impermissible bias

on the part of the VFPA in relation to the March and September 2019 decisions, there is also no

need to consider the availability of the remedies in the nature of mandamus being requested by

GCT or any other relief claimed in the amended notice of application for judicial review.

Page: 151

Conclusion

[282] I see no issue with the VFPA claiming, as a regulator, that it has a policy-based

preference for one expansion project over another. Strategic decisions necessarily involve

making choices between two competing visions for the development of the port. In this case,

preferring to move forward with the RBT2 project did not constitute a closing of the mind on the

part of the VFPA, as administrative decision maker, thus rendering it biased in the sense

professed by GCT. Moving forward with infrastructure development necessarily includes putting

other options aside - in a way, closing one’s mind to them - but that is part of the decision-

making process which allows a port authority to move forward with development and does not

necessarily evidence a reasonable apprehension of bias on the part of the port authority in favour

of its preferred project, nor does it mean that proponents of those competing visions for

development may compel the port authority to go back and review its strategic decisions by

simply throwing a new shiny penny into the mix.

[283] GCT has submitted a number of hypotheses purporting to be evidence of a closed mind

on the part of the port authority in relation to the DP4 project, thereby constituting impermissible

bias affecting the March and September 2019 decisions. Although providing an interesting

perspective on the record, GCT has not convinced me that its perspective on the elements of fact

that it gleans from the record is the one I should adopt. Cherry picking elements of the factual

record in an attempt to create a reoccurring theme is difficult to uphold when the elements may

be reasonably explained quite apart from that theme.

Page: 152

[284] Having found that GCT has failed to establish impermissible bias on the part of the

VFPA, and in line with the reasons of my decision, I dismiss the present application for judicial

review, with costs in favour of the respondents. As requested at the conclusion of the hearing

before me, I will provide the parties time to submit written submissions on costs.

Page: 153

JUDGMENT in T-538-19

THIS COURT’S JUDGMENT is that:

1.

2.

The present application is dismissed, with costs in favour of the respondents.

The parties are encouraged to confer and come to an agreement as to costs. If the

parties are unable to agree, the respondents may serve and file written

submissions on costs not exceeding three pages (excluding schedules or

appendices) within 15 days of the present judgment. The applicant may then serve

and file written submissions in response not exceeding three pages (excluding

schedules or appendices) within 15 days thereof, with reply submissions from the

respondents within 5 days thereafter. I shall remain seized of the matter for the

purpose of issuing my decision on costs. .

"Peter G. Pamel"

Judge

Page: 154

ANNEX

Canada Marine Act, SC 1998, c 10

Purpose of the Act

Objectifs

4 In recognition of the

significance of marine

transportation to Canada and

its contribution to the

Canadian economy, the

purpose of this Act is to

4 Compte tenu de

l’importance du transport

maritime au Canada et de sa

contribution à l’économie

canadienne, la présente loi a

pour objet de :

(a) implement marine policies a) mettre en œuvre une

that provide Canada with the

marine infrastructure that it

needs and that offer effective

politique maritime qui

permette au Canada de se

doter de l’infrastructure

support for the achievement of maritime dont il a besoin, qui

national, regional and local

social and economic

objectives and will promote

and safeguard Canada’s

competitiveness and trade

objectives;

le soutienne efficacement dans

la réalisation de ses objectifs

socioéconomiques nationaux,

régionaux et locaux aussi bien

que commerciaux, et l’aide à

promouvoir et préserver sa

compétitivité;

(a.1) promote the success of

ports for the purpose of

contributing to the

a.1) promouvoir la vitalité des

ports dans le but de contribuer

à la compétitivité, la

competitiveness, growth and

prosperity of the Canadian

economy;

croissance et la prospérité

économique du Canada;

(b) base the marine

b) fonder l’infrastructure

infrastructure and services on maritime et les services sur

international practices and des pratiques internationales

approaches that are consistent et des approches compatibles

with those of Canada’s major avec celles de ses principaux

trading partners in order to

foster harmonization of

partenaires commerciaux dans

le but de promouvoir

standards among jurisdictions; l’harmonisation des normes

qu’appliquent les différentes

autorités;

(c) ensure that marine

transportation services are

c) veiller à ce que les services

de transport maritime soient

organized to satisfy the needs organisés de façon à satisfaire

Page: 155

of users and are available at a les besoins des utilisateurs et

reasonable cost to the users;

leur soient offerts à un coût

raisonnable;

(d) provide for a high level of d) fournir un niveau élevé de

safety and environmental

protection;

sécurité et de protection de

l’environnement;

(e) provide a high degree of

e) offrir un niveau élevé

autonomy for local or regional d’autonomie aux

management of components

of the system of services and

administrations locales ou

régionales des composantes

facilities and be responsive to du réseau des services et

local needs and priorities;

installations portuaires et

prendre en compte les

priorités et les besoins locaux;

(f) manage the marine

f) gérer l’infrastructure

infrastructure and services in a maritime et les services d’une

commercial manner that

encourages, and takes into

façon commerciale qui

favorise et prend en compte

account, input from users and l’apport des utilisateurs et de

the community in which a

port or harbour is located;

la collectivité où un port ou

havre est situé;

(g) provide for the disposition, g) prévoir la cession,

by transfer or otherwise, of

certain ports and port

facilities; and

notamment par voie de

transfert, de certains ports et

installations portuaires;

(h) promote coordination and h) favoriser la coordination et

integration of marine l’intégration des activités

activities with surface and air maritimes avec les réseaux de

transportation systems.

transport aérien et terrestre.

Definitions

Définitions

5 The definitions in this

section apply in this Part.

5 Les définitions qui suivent

s’appliquent à la présente

partie.

airport means an airport

situated in a port. (aéroport)

aéroport Aéroport situé dans

un port. (airport)

letters patent means letters

patent as amended by

lettres patentes Les lettres

patentes telles que modifiées

par lettres patentes

Page: 156

supplementary letters patent,

supplémentaires, le cas

if any. (lettres patentes)

échéant. (letters patent)

port means the navigable

port L’ensemble des eaux

waters under the jurisdiction

navigables qui relèvent de la

of a port authority and the real compétence d’une

property and immovables that administration portuaire ainsi

the port authority manages,

que les immeubles et les biens

holds or occupies as set out in réels dont la gestion lui est

the letters patent. (port)

confiée, qu’elle détient ou

qu’elle occupe en conformité

avec les lettres patentes.

(port)

user, in respect of a port,

means a person that makes

commercial use of, or

utilisateur À l’égard d’un

port, personne qui utilise le

port à des fins commerciales

provides services at, the port. ou y fournit des services.

(utilisateur)

(user)

Application of Part

Application de la présente

partie

6(1) This Part applies to every 6(1) La présente partie

port authority set out in the

schedule and to every port

authority for which letters

patent of incorporation are

issued or that has been

s’applique aux administrations

portuaires inscrites à l’annexe

et à celles pour lesquelles des

lettres patentes ont été

délivrées ou qui ont été

continued under this Part and prorogées sous le régime de la

that has not been dissolved.

présente partie et n’ont pas été

dissoutes.

Amendment of schedule

Modification de l’annexe

(2) The Minister may, by

regulation, amend the

schedule.

(2) Le ministre peut, par

règlement, modifier l’annexe.

Agent of Her Majesty

Mandataire de Sa Majesté :

administration portuaire

7(1) Subject to subsection (3), 7(1) Sous réserve du

a port authority is an agent of paragraphe (3), les

Her Majesty in right of

administrations portuaires ne

Canada only for the purposes sont mandataires de Sa

of engaging in the port

Majesté du chef du Canada

que dans le cadre des activités

Page: 157

activities referred to in

paragraph 28(2)(a).

portuaires visées à l’alinéa

28(2)a).

Not an agent of Her Majesty Non-mandataire de Sa

Majesté

(2) A wholly-owned

subsidiary of a port authority

(2) Les filiales à cent pour

cent des administrations

is not an agent of Her Majesty portuaires ne sont pas

in right of Canada unless,

subject to subsection (3),

mandataires de Sa Majesté du

chef du Canada sauf si, sous

réserve du paragraphe (3) :

(a) it was an agent of Her

a) d’une part, elles l’étaient au

Majesty in right of Canada on 10 juin 1996;

June 10, 1996; and

(b) it is an agent of Her

Majesty in right of Canada

b) d’autre part, elles le sont en

vertu d’une loi autre que la

under an enactment other than présente loi.

this Act.

Borrowing restriction

Réserve

(3) A port authority or a

(3) Ni les administrations

wholly-owned subsidiary of a portuaires ni les filiales à cent

port authority may not borrow pour cent des administrations

money as an agent of Her

Majesty in right of Canada.

portuaires ne peuvent

emprunter de fonds à titre de

mandataires de Sa Majesté du

chef du Canada.

Letters patent

Lettres patentes

8(1) The Minister may issue

letters patent — that take

effect on the date stated in

them — incorporating a port

8(1) Le ministre peut délivrer

des lettres patentes — prenant

effet à la date qui y est

mentionnée — pour la

authority without share capital constitution d’une

for the purpose of operating a administration portuaire sans

particular port in Canada if

the Minister is satisfied that

the port

capital-actions en vue

d’exploiter un port spécifique

au Canada, s’il est convaincu

que les conditions suivantes

sont réunies :

Page: 158

(a) is, and is likely to remain, a) le port est financièrement

financially self-sufficient;

autonome et le demeurera

vraisemblablement;

(b) is of strategic significance b) il présente une importance

to Canada’s trade;

stratégique pour le commerce

du Canada;

(c) is linked to a major rail

line or a major highway

infrastructure; and

c) il est rattaché à une ligne

principale de chemins de fer

ou à des axes routiers

importants;

(d) has diversified traffic.

d) il a des activités

diversifiées.

Contents of letters patent

Contenu des lettres patentes

(2) The letters patent shall set (2) Les lettres patentes

out the following:

doivent préciser ce qui suit :

(a) the corporate name of the

port authority;

a) la dénomination sociale de

l’administration portuaire;

(b) the place where the

registered office of the port

authority is located;

b) le lieu de son siège social;

(c) the navigable waters that

c) les eaux navigables qui

are within the port authority’s relèvent de sa compétence;

jurisdiction;

(d) the federal real property

d) les immeubles fédéraux et

and federal immovables under les biens réels fédéraux dont

the management of the port

authority;

la gestion lui est confiée;

(e) the real property and

immovables, other than the

federal real property and

federal immovables, held or

occupied by the port

authority;

e) les immeubles et les biens

réels, autres que les

immeubles fédéraux et les

biens réels fédéraux, qu’elle

occupe ou détient;

(f) the number of directors,

between seven and eleven, to

f) le nombre

d’administrateurs, compris

entre sept et onze, nommés en

Page: 159

be appointed under section 14, conformité avec l’article 14 et

to be chosen as follows:

choisis de la façon suivante :

(i) one individual nominated

by the Minister,

(i) un administrateur est

nommé sur la proposition du

ministre,

(ii) one individual appointed

by the municipalities

mentioned in the letters

patent,

(ii) un administrateur est

nommé par les municipalités

mentionnées dans les lettres

patentes,

(iii) one individual appointed

by the province in which the

port is situated, and, in the

case of the port wholly or

partially located in

(iii) un administrateur est

nommé par la province où le

port est situé et, dans le cas du

port situé partiellement ou

complètement à Vancouver,

Vancouver, another individual un second administrateur est

appointed by the Provinces of nommé par les trois provinces

Alberta, Saskatchewan and

suivantes : l’Alberta, la

Manitoba acting together, and Saskatchewan et le Manitoba,

(iv) the remaining individuals (iv) le reste des

nominated by the Minister in

consultation with the users

administrateurs sont choisis

parmi les personnes dont la

selected by the Minister or the nomination est proposée par le

classes of users mentioned in

the letters patent;

ministre en consultation avec

les utilisateurs qu’il choisit ou

les catégories d’utilisateurs

mentionnées dans les lettres

patentes;

(g) a code of conduct

governing the conduct of the

directors and officers of the

port authority;

g) le code de déontologie

régissant la conduite des

administrateurs et dirigeants

de l’administration portuaire;

(h) the charge on the gross

h) le montant des frais — ou

revenues of the port authority, le mode de calcul de celui-ci

or the formula for calculating — que l’administration

it, that the port authority shall portuaire devra payer

pay each year to the Minister

on the day fixed by the

annuellement au ministre, à la

date fixée par celui-ci, pour le

Minister to maintain its letters maintien en vigueur de ses

patent in good standing; lettres patentes, ces frais étant

Page: 160

calculés sur les revenus bruts

de l’administration;

(i) the extent to which the port i) la mesure dans laquelle

authority and a wholly-owned l’administration portuaire et

subsidiary of the port

les filiales à cent pour cent de

l’administration portuaire

peuvent exercer les activités

portuaires visées à l’alinéa

28(2) a) et les autres activités

visées à l’alinéa 28(2) b);

authority may undertake port

activities referred to in

paragraph 28(2)(a) and other

activities referred to in

paragraph 28(2)(b);

(j) the maximum term of a

j) la durée maximale des baux

lease or licence of federal real ou permis octroyés à l’égard

property or federal

immovables under the

management of the port

authority;

des immeubles fédéraux ou

des biens réels fédéraux gérés

par l’administration portuaire;

(k) the limits on the authority k) les limites aux pouvoirs de

of the port authority to

contract as agent for Her

Majesty;

l’administration portuaire de

conclure des contrats à titre de

mandataire de Sa Majesté;

(l) the limits on the power of

the port authority to borrow

money on the credit of the

port authority for port

l) les limites au pouvoir de

l’administration portuaire

d’emprunter des fonds sur son

crédit pour l’exploitation du

purposes or a code governing port ou le code régissant ce

that power, as the case may

be; and

pouvoir;

(m) any other provision that

the Minister considers

appropriate to include in the

letters patent and that is not

inconsistent with this Act.

m) toute autre disposition que

le ministre juge indiqué

d’inclure dans les lettres

patentes et qui n’est pas

incompatible avec la présente

loi.

Status of letters patent

Non-application de la Loi

sur les textes réglementaires

(3) Letters patent are not

regulations within the

meaning of the Statutory

Instruments Act, but shall be

published in the Canada

(3) Les lettres patentes ne sont

pas des textes réglementaires

au sens de la Loi sur les textes

réglementaires; elles sont

toutefois publiées dans la

Page: 161

Gazette and are valid with

respect to third parties as of

the date of publication.

Gazette du Canada et sont

opposables aux tiers à

compter de leur date de

publication.

When Ministerial approval

required

Approbation ministérielle

(4) Any provisions of letters

(4) Les dispositions des lettres

patent relating to the extent to patentes relatives à la mesure

which a port authority may dans laquelle l’administration

undertake activities referred to portuaire peut exercer les

in paragraph 28(2)(b) shall be activités visées à l’alinéa

approved by the President of

the Treasury Board and the

28(2) b) doivent être

approuvées par le président du

Minister of Finance before the Conseil du Trésor et le

letters patent are issued.

ministre des Finances avant la

délivrance des lettres patentes.

When Governor in Council

approval required

Approbation du gouverneur

en conseil

(5) Any provisions of letters

patent relating to limits on a

port authority’s power to

(5) Les dispositions des lettres

patentes relatives à la mesure

dans laquelle l’administration

borrow money on its credit for portuaire peut emprunter des

port purposes shall be

approved by the Governor in

Council, on the

fonds sur son crédit pour

l’exploitation du port doivent

être approuvées par le

recommendation of the

Minister and the Minister of

Finance, before the letters

patent are issued.

gouverneur en conseil, sur

recommandation du ministre

et du ministre des Finances,

avant la délivrance des lettres

patentes.

Supplementary letters

patent

Lettres patentes

supplémentaires

9(1) The Minister may, either 9(1) Le ministre peut, soit de

on the Minister’s own

son propre chef et après avoir

avisé le conseil

d’administration des

modifications proposées, soit

sur demande de celui-ci

initiative and after giving

notice of the proposed

changes to the board of

directors, or when the board

of directors has, by resolution, autorisée par résolution,

requested it, issue

supplementary letters patent

délivrer des lettres patentes

supplémentaires modifiant les

Page: 162

amending the letters patent of lettres patentes de

a port authority if the Minister l’administration portuaire s’il

is satisfied that the

est convaincu que les

amendment is consistent with modifications sont

this Act, and the

compatibles avec la présente

supplementary letters patent

take effect on the date stated

in them.

loi; les lettres patentes

supplémentaires prennent

effet à la date qui y est

mentionnée.

Notice

Avis

(2) Notice must be given in

writing and set out a time

limit within which the board

of directors may comment to

the Minister regarding the

proposed changes.

(2) L’avis est donné par écrit

et prévoit le délai dans lequel

le conseil d’administration

peut faire parvenir au ministre

ses observations sur les

modifications proposées.

…

[…]

Capacity and powers

Capacité et pouvoirs

28(1) A port authority is

incorporated for the purpose

of operating the port in

28(1) Une administration

portuaire est constituée pour

l’exploitation du port visé par

ses lettres patentes et a, à cette

respect of which its letters

patent are issued and, for that fin et pour l’application de la

purpose and for the purposes présente loi, la capacité d’une

of this Act, has the powers of personne physique.

a natural person.

Activities

Activités portuaires

(2) The power of a port

(2) L’autorisation donnée à

authority to operate a port is

une administration portuaire

limited to the power to engage d’exploiter un port est

in

restreinte aux activités

suivantes :

(a) port activities related to

shipping, navigation,

transportation of passengers

a) les activités portuaires liées

à la navigation, au transport

des passagers et des

and goods, handling of goods marchandises, et à la

and storage of goods, to the

manutention et l’entreposage

extent that those activities are des marchandises, dans la

Page: 163

specified in the letters patent; mesure prévue par les lettres

and

patentes;

(b) other activities that are

b) les autres activités qui sont

deemed in the letters patent to désignées dans les lettres

be necessary to support port

operations.

patentes comme étant

nécessaires aux opérations

portuaires.

…

[…]

Fisheries Act, RSC 1985, c F-14

Harmful alteration,

Détérioration, destruction

disruption or destruction of ou perturbation de l’habitat

fish habitat

35(1) No person shall carry on 35(1) Il est interdit d’exploiter

any work, undertaking or

activity that results in the

un ouvrage ou une entreprise

ou d’exercer une activité

harmful alteration, disruption entraînant la détérioration, la

or destruction of fish habitat.

destruction ou la perturbation

de l’habitat du poisson.

Exception

(2) A person may carry on a

work, undertaking or activity

without contravening

(2) Il est permis d’exploiter un

ouvrage ou une entreprise ou

d’exercer une activité sans

contrevenir au paragraphe (1)

dans les cas suivants :

subsection (1) if

…

[…]

(b) the carrying on of the

work, undertaking or activity

is authorized by the Minister

and the work, undertaking or

activity is carried on in

accordance with the

b) l’exploitation de l’ouvrage

ou de l’entreprise ou

l’exercice de l’activité est

autorisé par le ministre et est

conforme aux conditions que

celui-ci établit;

conditions established by the

Minister;

…

[…]

Page: 164

Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52

[Repealed, 2019, c 28, s 9] - 2019-08-28

Project carried out on

federal lands

Project réalisé sur un

territoire domanial

67 An authority must not

carry out a project on federal

lands, or exercise any power

or perform any duty or

67 L’autorité ne peut réaliser

un projet sur un territoire

domanial ou exercer les

attributions qui lui sont

function conferred on it under conférées sous le régime

any Act of Parliament other d’une loi fédérale autre que la

than this Act that could permit présente loi et qui pourraient

a project to be carried out, in

whole or in part, on federal

lands, unless

permettre la réalisation en tout

ou en partie du projet sur un

tel territoire que si, selon le

cas :

(a) the authority determines

that the carrying out of the

project is not likely to cause

significant adverse

a) elle décide que la

réalisation du projet n’est pas

susceptible d’entraîner des

effets environnementaux

négatifs importants;

environmental effects; or

(b) the authority determines

that the carrying out of the

project is likely to cause

significant adverse

b) elle décide que la

réalisation du projet est

susceptible d’entraîner des

effets environnementaux

environmental effects and the négatifs importants et le

Governor in Council decides gouverneur en conseil décide,

that those effects are justified au titre du paragraphe 69(3),

in the circumstances under

subsection 69(3).

que ces effets sont justifiables

dans les circonstances.

Impact Assessment Act, SC 2019, c 28, s 1

Federal authority

Autorité fédérale

8 A federal authority must not 8 L’autorité fédérale ne peut

exercise any power or perform exercer les attributions qui lui

any duty or function conferred sont conférées sous le régime

on it under any Act of

d’une loi fédérale autre que la

Parliament other than this Act présente loi et qui pourraient

that could permit a designated permettre la réalisation en tout

project to be carried out in

ou en partie d’un projet

whole or in part and must not désigné et ne peut accorder à

Page: 165

provide financial assistance to quiconque une aide financière

any person for the purpose of en vue de permettre la

enabling that designated

project to be carried out, in

whole or in part, unless

réalisation en tout en partie

d’un tel projet que si, selon le

cas :

(a) the Agency makes a

decision under subsection

16(1) that no impact

assessment of the designated

project is required and posts

that decision on the Internet

site; or

a) l’Agence décide, au titre du

paragraphe 16(1), qu’aucune

évaluation d’impact du projet

n’est requise et affiche sa

décision sur le site Internet;

(b) the decision statement

b) la déclaration remise au

with respect to the designated promoteur au titre de l’article

project that is issued to the

proponent of the designated

project under section 65 sets

out that the effects that are

indicated in the report with

respect to the impact

65 relativement au projet

donne avis d’une décision

portant que les effets qui sont

identifiés dans le rapport

d’évaluation d’impact du

projet sont dans l’intérêt

assessment of that project are public.

in the public interest.

…

[…]

Project carried out on

federal lands

Project réalisé sur un

territoire domanial

82 An authority must not

82 L’autorité ne peut réaliser

un projet sur un territoire

domanial, exercer les

carry out a project on federal

lands, exercise any power or

perform any duty or function

attributions qui lui sont

conferred on it under any Act conférées sous le régime

of Parliament other than this d’une loi fédérale autre que la

Act that could permit a project présente loi et qui pourraient

to be carried out, in whole or

in part, on federal lands or

permettre la réalisation, en

tout ou en partie, du projet sur

provide financial assistance to un tel territoire ni accorder à

any person for the purpose of quiconque une aide financière

enabling that project to be

carried out, in whole or in

part, on federal lands, unless

en vue de permettre la

réalisation en tout ou en partie

d’un projet sur un tel territoire

que si, selon le cas :

Page: 166

(a) the authority determines

that the carrying out of the

project is not likely to cause

significant adverse

a) elle décide que la

réalisation du projet n’est pas

susceptible d’entraîner des

effets environnementaux

négatifs importants;

environmental effects; or

(b) the authority determines

that the carrying out of the

project is likely to cause

significant adverse

b) elle décide que la

réalisation du projet est

susceptible d’entraîner des

effets environnementaux

environmental effects and the négatifs importants et le

Governor in Council decides, gouverneur en conseil décide,

under subsection 90(3), that

those effects are justified in

the circumstances.

au titre du paragraphe 90(3),

que ces effets sont justifiables

dans les circonstances.

Vancouver Port Authority Letters Patent - P.C. 2007-1885 December 6, 2007

CERTIFICATE OF AMALGAMATION OF PORT AUTHORITIES

…

NOW THEREFORE under the authority of section 59.1 of the Port Authorities Management

Regulations, it is hereby certified that the Vancouver Port Authority, the Fraser River Port

Authority and the North Fraser Port Authority are amalgamated and continue as one port

authority to be named the Vancouver Fraser Port Authority, with the letters patent for the

amalgamated port authority contained herein. The amalgamation takes effect on January 1, 2008.

VANCOUVER FRASER PORT AUTHORITY

…

NOW THEREFORE, under the authority of section 9 of the Act, the Letters Patent of the

Vancouver Fraser Port Authority are as follows:

…

ARTICLE 4

DIRECTORS AND DIRECTOR’ MEETINGS

4.1 General Duties of the Board. The Board is responsible for the management of the activities

of the Authority.

…

Page: 167

ARTICLE 5

CODE OF CONDUCT

5.1 The Code of Conduct governing the conduct of the directors and officers is set out in

Schedule E hereto.

…

ARTICLE 7

ACTIVITIES AND POWERS OF THE AUTHORITY AND SUBSIDIARIES

7.1 Activities of the Authority Related to Certain Port Operations. To operate the port, the

Authority may undertake the port activities referred to in paragraph 28(2)(a) of the Act to the

extent specified below:

(a) development, application, enforcement and amendment of rules, orders, bylaws, practices or

procedures and issuance and administration of authorizations respecting use, occupancy or

operation of the port and enforcement of Regulations or making of Regulations pursuant to

subsection 63(2) of the Act;

…

SCHEDULE E

VANCOUVER FRASER PORT AUTHORITY

CODE OF CONDUCT

ARTICLE 1

OBJECTS AND INTERPRETATION

1.1 Object of Code. The object of this Code is to preserve and enhance public confidence in the

integrity and impartiality of directors and officers of the Authority and the business activities and

transactions carried on by the Authority by establishing clear conflict of interest rules for

directors and officers of the Authority.

1.2 Principles. This Code shall be interpreted in accordance with the following general

principles:

(a) every director and officer shall discharge their duties and arrange their private affairs in such

a manner so as to preserve and promote public confidence and trust in the integrity and

impartiality of the Authority;

(b) the obligations of a director or officer described in subsection 1.2(a) may not always be

discharged merely by acting in accordance with the technical requirements of the Act, the

Regulations, the Letters Patent, the by-laws and the policies and resolutions of the Board; and

Page: 168

(c) public confidence and trust in the integrity and impartiality of the Authority may be as

equally compromised by the appearance of a conflict as with the existence of an actual conflict.

1.3 Definitions. In this Code terms used herein shall have the meanings ascribed to them in the

Act and the Letters Patent, and in addition the following terms shall have the following

meanings:

(a) “Gift” includes any good, service, benefit, hospitality, promise or favour; and

(b) “Related Party” means with respect to a director or officer of the Authority

(i) a spouse, child, brother, sister or parent of such director or officer;

(ii) a relative of such director or officer (other than a spouse, child, brother, sister or parent of

such director or officer) or a relative of the spouse of such director or officer if the relative

has the same residence as the director or officer;

(iii) a corporation, partnership, trust or other entity which is directly or indirectly controlled

by such director or officer or by a spouse, child, brother, sister or parent of such director or

officer or any combination of such persons; and

(iv) a partner of such director or officer acting on behalf of a partnership of which the

director or officer and the partner are partners.

1.4 Application of Code. This Code applies to all directors and officers of the Authority.

1.5 Scope of Obligations. Conforming to the specific requirements of this Code shall not

absolve a director or officer of responsibility for taking such additional action as may be

necessary to conform with any standard of conduct or comply with any duty imposed by the Act,

the Regulations, the Letters Patent, the by-laws and the policies and resolutions of the Board or

otherwise by law.

1.6 Acknowledgement by Directors and Officers. Each director and officer shall acknowledge

in writing to the Governance Committee that

(a) they have read and understood this Code;

(b) to the best of their knowledge they are in compliance with this Code and neither they nor any

Related Party to them has a conflict or a potential conflict within the meaning of Article 2 of this

Code; and

(c) in the case of each officer, compliance with this Code is a condition of their employment.

1.7 Timing of Acknowledgement. Each director and officer shall deliver the acknowledgement

described in section 1.6 of this Code to the Governance Committee:

(a) with respect to the directors serving and officers employed on the date the Letters Patent take

effect, forthwith upon the Letters Patent taking effect; and

Page: 169

(b) with respect to all other directors at the time of their appointment and with respect to all other

officers at the time of the commencement of their employment.

1.8 Annual Review. Each director and officer shall regularly review their obligations under this

Code and shall on the 15th day of March of each year provide the Governance Committee with a

written acknowledgement confirming such review and that, to the best of the knowledge of the

director or officer,

(a) they are in compliance with this Code; and

(b) neither they nor any Related Party to them has a conflict within the meaning of Article 2 of

this Code.

ARTICLE 2

CONFLICTS OF INTEREST

2.1 Conflicts Generally. A director or officer shall not allow his or her personal interests or the

personal interests of a Related Party to the director or officer to conflict with or to give rise to the

appearance of a conflict with the duties and responsibilities of the director or officer to the

Authority or the interests of the Authority.

2.2 Specific Types of Conflicts. Without restricting the generality of section 2.1, the following

represent examples of specific matters which give rise to a conflict or the appearance of a

conflict on the part of a director or officer:

(a) Competition with the Authority: A director or officer or a Related Party of a director or

officer engages in any activity, or has a material interest in any person which engages in an

activity, which is in competition or could reasonably be expected to be in competition with the

Authority's present or proposed interests;

(b) Transactions with the Authority or a User; Material Interests: A director or officer or a

Related Party of a director or officer

(i) has a material interest in a user;

(ii) owes material obligations to the Authority or a user, other than in connection with the

duties of the director or officer arising from their position with the Authority;

(iii) conducts business with the Authority or a user; or

(iv) holds a material interest in a person which conducts business with, or acts as a consultant

or advisor to, the Authority or a user;

(c) Interest in Material Contract: A director or officer

(i) is a party to a material contract or proposed material contract with the Authority; or

Page: 170

(ii) is a director or officer of or has a material interest in any person who is a party to a

material contract or proposed material contract with the Authority; and

(d) Acceptance of Offices with Conflicted Entities: A director or officer accepts an appointment

or a nomination for election to an office of, or employment with, any corporation, partnership,

foundation, institute, organization, association or other entity, the business or activities of which

are, or could reasonably be expected to be, in conflict with the interests of the Authority.

2.3 Conflicts For Which Approval Satisfactory. Engaging in the following activities shall be

deemed not to give rise to a conflict or the appearance of a conflict on the part of a director or

officer within the meaning of Article 2 of this Code provided that the director or officer obtains

the written approval of the Governance Committee prior to engaging in such activities:

(a) Acceptance of Offices With Entities Benefiting From Authority: A director or officer accepts

an appointment or a nomination for election to an office of, or employment with, any

corporation, partnership, foundation, institute, organization, association or entity, the business or

activities of which benefit or could reasonably be expected to benefit from the business of the

Authority or decisions made by the Authority; and

(b) Use of Authority Property: A director or officer uses property of the Authority or property

managed by the Authority for the personal benefit of the director or officer or a Related Party of

the director or officer.

If a director or officer fails to obtain the written approval of the Governance Committee prior to

engaging in any activity described in subsections (a) or (b) of this section, the engagement of the

director or officer in such activity shall be deemed to give rise to a conflict of interest within the

meaning of Article 2 of this Code.

FEDERAL COURT

SOLICITORS OF RECORD

T-538-19

DOCKET:

GCT CANADA LIMITED PARTNERSHIP v

VANCOUVER FRASER PORT AUTHORITY and

ATTORNEY GENERAL OF CANADA

STYLE OF CAUSE:

VANCOUVER, BRITISH COLUMBIA

OCTOBER 18, 2021

PLACE OF HEARING:

DATE OF HEARING:

JUDGMENT AND REASONS:

DATED:

PAMEL J.

JULY 26, 2022

APPEARANCES:

Peter H. Griffin

FOR THE APPLICANT

Matthew B. Lerner

Christopher Yung

Joan M. Young

Komal Jatoi

FOR THE RESPONDENT

VANCOUVER FRASER PORT AUTHORITY

Charlotte Conlin

Sarah Bird

FOR THE RESPONDENT

Jordan Marks

ATTORNEY GENERAL OF CANADA

Shane Hopkins-Utter

SOLICITORS OF RECORD:

Lenczner Slaght Royce Smith

Griffin LLP

FOR THE APPLICANT

Barristers and Solicitors

Toronto, Ontario

McMillan LLP

FOR THE RESPONDENT

Barristers and Solicitors

Vancouver, British Columbia

VANCOUVER FRASER PORT AUTHORITY

Attorney General of Canada

Vancouver, British Columbia

FOR THE RESPONDENT

ATTORNEY GENERAL OF CANADA

Page: 2