2022 FC, 2022 FC 1109

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 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 I. 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 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. [ 4 ] I am not persuaded by GCT that there is any evidence that the VFPA executives were 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. II.

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 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. [ 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.

III. 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 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 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 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.

IV. 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 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 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 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 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 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 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 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 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 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 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. V.

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 tim e” " (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. … 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 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.” " [ 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 ali a, 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. [ 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 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 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 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 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. [ 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. VI.

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 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 motionsin part: GCT was permitted to amend its notice of application on the grounds that the inclusion of the September 2019 decision "“is notan intention to raise judicial review of an additional decision but rather to indicate a continuing type of activity that it asserts supports theallegation of bias”" (2020 FC 348).

In addition, and although Prothonotary Furlanetto allowed the VFPA’s motions to strike certainaspects of the relief sought by GCT, she nonetheless dismissed the request to strike other aspects which related to mootness andprematurity connected to the bias issue; under the test set out in Borowski v Canada (Attorney General), (SCC), [1989]1 SCR 342 [Borowski], the Prothonotary considered that the allegations of underlying bias with respect to the March 2019 decisionremained 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 inrespect of the DP4 Project is ongoing.

The VFPA exercises power over the DP4 Project under the PER Process and the authority grantedto it under the [CMA]. While a change in the environmental regime has been effected by the implementation of the IAA, there is nochange 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 alive issue that can be determined by the Court at its discretion”".

As to the prematurity argument, the Prothonotary found that such adefence could not arise from the VFPA’s own making in rescinding its March 2019 decision when the live issue—the purported bias ofthe VFPA—was tethered to that decision.

The Prothonotary, however, made it clear that her decision was not intended to be apronouncement 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 2019decision and September 2019 decisions—collectively referred to as the March and September 2019 decisions, seeking the followingrelief: (

a) An Order in the nature of certiorari quashing the Decision and directing that the Minister of Transport (Canada) or anappropriate 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 theVFPA 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; (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 VFPAremains 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 theDP4 Project in relation to: (

i) access for conducting studies, collecting data, and other works and activities related to the impact assessment andpermitting 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 theVFPA’s letters patent. (

e) A Declaration that the VFPA made the Decision relying upon extraneous and inappropriate considerations resulting fromits own actual bias, thereby exceeding its jurisdiction under the Act. The VFPA relied upon its own immediate commercialinterest in the Decision and its desire to protect and enhance its own competing project to fund and build a second terminal atRoberts Bank (the “RBT2 Project”) – considerations incompatible with its role as a federal board, commission or othertribunal; (

f) A Declaration that the VFPA has not conducted, and cannot conduct, a fair and impartial process under the Act and itsown Project and Environmental Review Process (the “PER Process”), and in accordance with the principles of naturaljustice and procedural fairness due to its actual bias; (

g) A Declaration that the lands affected by the DP4 Project are not all within the jurisdiction of the VFPA and remain underthe jurisdiction of the Minister of Transport (Canada), or such other delegate of Her Majesty the Queen as determined bythis 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 andpermitting activities for the DP4 project, GCT is seeking an alternative assessment process where Transport Canada oversees certainaspects 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 tomake a fair and rational decision based on objective considerations, and instead making a decision based on predeterminations on the partof the VFPA—the parties, with the assistance of the Court, would have to sketch out the exact process that will eventually have to beundertaken during the assessment process of the DP4 project.

GCT’s assertion, rightly or wrongly, that it was open to this Court tofashion a remedy of this kind under the circumstances is supported, it argues, by the decision of Madam Justice Sharlow, as she thenwas, in Pushpanathan v Canada (Minister of Citizenship and Immigration ), (FC), [1999] 4 FC 465. I should alsomention that during the hearing, GCT confirmed that it was no longer pursuing the declaration sought at paragraph 2(

g) of the amendednotice 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 thedecision 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 onthe 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 motionseeking further disclosure of the record, primarily on the basis of the bias allegation. On October 15, 2020, Mr. Justice Pentneydismissed GCT’s motion seeking an order for leave to cross-examine a senior official of the VFPA in advance of the hearing of itsmotion pursuant to subsection 318(2) of the Rules (2020 FC 970), and on June 17, 2021, Justice Pentney granted in part the motion tocompel disclosure (2021 FC 624). [61] That is where matters stood at the commencement of the hearing. VII.

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 orcontrol the actions of port authorities through the requirement under the Financial Administration Act, RSC 1985, c F-11, that theysubmit corporate plans to the Governor in Council.

The purpose of enacting the CMA was to consolidate and simplify maritimeregulations, 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 managedin a commercially sound and decentralized manner, for the most part free from the control of the Minister of Transport. The corecommercial focus of the CMA is reflected in its legislative history, with the result that the VFPA is autonomous and financiallysustainable.

In fact, one of the conditions for the Minister to issue letters patent incorporating a port authority is that the Minister issatisfied 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 theCanada Business Corporations Act for greater certainty in the

interpretation of words and expressions used in the CMA—with itspurpose being to, inter alia, "“provide a high degree of autonomy for local and regional management … and be responsive to local needsand priorities”" as well as to "“manage the marine infrastructure and services in a commercial manner that encourages, and takes intoaccount, 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, whichspecifically authorizes a port authority to “operate” its port and, subject to the letters patent, to engage in port activities set out insubsection 28(2) of the CMA. There is no issue that GCT requires the authorization of the VFPA to proceed with DP4. Moreover, theRegulations 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 includethe "“development, application, enforcement and amendment of rules, orders, bylaws, practices or procedures and issuance andadministration 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 thetransportation industry or the business community”" (CMA ss 15(1) and (2), and 20). The directors have to "“act honestly and in goodfaith with a view to the best interests of the port authority”" (CMA s 22(1)(a)).

The VFPA’s Code of Conduct (Schedule E to its LettersPatent – 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. VIII. 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 ? 2 . Did the VFPA breach the principles of natural justice and procedural fairness by rendering a decision tainted by impermissible bias? 3 . Does this Court have the jurisdiction to grant the relief sought by GCT? IX.

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 ]). X. 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. [ 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) , 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 thebias issue first with the VFPA (Chopra v Canada (Attorney General), 2013 FC 644 at para 66; Lin v Canada (Public Safety andEmergency Preparedness), 2021 FCA 81 at para 6 [Lin]), I accept the general principle of non-interference with ongoing administrativeprocesses subject only to exceptional circumstances, and I accept that concerns regarding procedural fairness or bias are not exceptionalcircumstances allowing parties to bypass an administrative process as long as that process allows the issues to be raised and an effectiveremedy to be granted (Canada (Border Services Agency) v CB Powell Limited, 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, asa non-adjudicative tribunal saddled with commercial and operational responsibility for running the Port of Vancouver, to have consideredits 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 ishigher (David Bull Laboratories (Canada) Inc v Pharmacia Inc (CA), (FCA), [1995] 1 FC 588 at 600)—the test forwhich the VFPA simply did not meet—and thus the prism through which I should review the issues of mootness and prematurity isdifferent.

However, the fundamental problem remains the same, i.e., GCT’s concerns over bias have a direct impact upon how these twoissues 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 provideunbiased oversight and as to its accountability if it cannot do so.

These allegations will persist until they are evaluated by the Court.”" Iagree, and the situation that existed before Prothonotary Furlanetto and Justice Phelan—as well as the FCA, although only the issue ofprematurity was raised on appeal—remains today, and as stated by Justice Phelan, it would be wasteful to compel GCT to file a freshPPE containing the same basic request for project approval "“only to end up in the same position as at present”"; the issue of bias mustbe addressed. B.

Did the VFPA breach the principles of natural justice and procedural fairness byrendering a decision tainted by bias and by breaching GCT’s legitimate expectationsregarding 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 partieswhose interest they must determine”" (Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), (SCC), [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 outby the Supreme Court in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [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 setrule for what requirements will be applicable in any given case; there are several factors in the spectrum analysis which are relevant indetermining 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. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; iii. the importance of the decision to the individual or individuals affected—the more important the decision is to the lives ofthose affected and the greater its impact on that person or those persons, the more stringent the procedural protections thatwill be mandated; iv. the legitimate expectations of the person challenging the decision; v. the choices of procedure made by the agency itself, particularly when the statute leaves to the decision maker the abilityto 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 ofprocedural fairness, which in turn negatively affects the duty of fairness which applies to all administrative bodies.

In NewfoundlandTelephone, 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 thefunction of the particular tribunal. See Martineau v. Matsqui Institution Disciplinary Board, (SCC), [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 ifan adjudicator i

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