Executive Summary: Key Legal and Evidentiary Issues

• Whether the Prince Rupert Port Authority’s July 19, 2024 letter was a final, reviewable decision or merely a preliminary screening step in its land use process
• Prematurity of Trigon’s judicial review application, including the availability and adequacy of any alternative recourse or reconsideration mechanisms
• The extent to which the Port Authority’s refusal to conduct an Impact Assessment Act section 82 review caused legal prejudice to Trigon beyond mere inconvenience
• The relationship between this Federal Court judicial review and parallel British Columbia litigation over Trigon’s lease rights and LPG export permissions
• Admissibility of affidavit evidence on a motion to strike, particularly an affidavit that largely attaches documents already referenced in the Notice of Application
• The Federal Court’s jurisdiction to grant mandamus-type or oversight relief, including whether the Minister of Transport can be ordered to conduct or oversee a section 82 review

Facts of the case

Trigon Pacific Terminals Limited operates as a commodities exporter at the Port of Prince Rupert’s marine terminal on Ridley Island in British Columbia. Its activities on the lands are governed by a lease with the Prince Rupert Port Authority, a federal port authority established under the Canada Marine Act. The lease, as originally agreed in 2019, authorized Trigon to export specific commodities but did not include liquefied petroleum gas (LPG). In 2015, the Port Authority had granted exclusive rights to export LPG at the port to another operator, Ridley Island Energy Export Facility (REEF), a direct competitor of Trigon. When Trigon later sought to expand its business to include LPG exports from the same terminal lands, it entered into a dispute with the Port Authority over whether it could do so under its existing lease and the port’s land use framework. That leasing and exclusivity dispute is already the subject of separate litigation in the British Columbia courts.

Steps leading to the impact assessment dispute

In 2023, Trigon asked the Port Authority to consent to the export of LPG from the leased lands. The Port Authority refused this request, taking the position that LPG export rights remained exclusively with REEF. Trigon then sought reconsideration of that refusal, but the Port Authority again declined to grant the requested change to the lease’s permitted uses. Against this backdrop, Trigon advanced a regulatory strategy to move its LPG project forward under federal impact assessment legislation. On May 23, 2024, Trigon requested that the Port Authority conduct a regulatory review of its proposed LPG export project under section 82 of the Impact Assessment Act. Trigon submitted a project description that contemplated substantial LPG export facilities within its existing terminal footprint, including storage tanks, cooling equipment, pre-treatment equipment, offloading infrastructure and operations to receive LPG by rail and load LNG carriers for export.

The Port Authority’s July 19, 2024 decision

On July 19, 2024, the Port Authority’s Vice President, Shelby O’Brien, issued a letter responding to Trigon’s impact assessment request. The letter concluded that Trigon had failed to establish sufficient facts to warrant subjecting the project to an impact assessment under section 82 of the Act. The Port Authority emphasized that the lease, as amended, did not permit Trigon to use the lands to conduct the LPG project activities described in the project description. It also stated that Trigon had not demonstrated that it held all necessary surface and subsurface rights to carry out the project. Because of these deficiencies, the Port Authority found that Trigon had not “perfected” its assessment request and therefore denied the request to perform the impact assessment “at this time,” while leaving open the possibility that Trigon might submit a subsequent and “perfected” request in future. This July 19 letter effectively closed the door on Trigon’s immediate attempt to secure a regulatory review under the Impact Assessment Act, independent of the separate lease dispute in the British Columbia courts.

Policy and framework considerations

Although there is no insurance or similar “policy” wording at issue, the decision turns on institutional and regulatory instruments that function like governing terms or frameworks. The Port Authority relies on its letters patent, which confer its authority to administer authorizations for the use and operation of the Port of Prince Rupert, and empower it to create processes for reviewing project proposals for compliance with federal environmental legislation. It also operates under a Land Use Plan adopted in September 2020, which structures a four-stage process for reviewing and approving land use proposals and project developments on port lands. The Port Authority characterized the July 19 letter as a preliminary determination under Stage 1 of the Land Use Plan process. Trigon, by contrast, treated the letter as a substantive decision refusing to conduct the section 82 impact assessment it had requested. The Federal Court’s analysis therefore engaged both the Impact Assessment Act framework and the port’s own internal land use process to determine whether the letter was a final, reviewable act.

The motion to strike and evidentiary issues

In response to Trigon’s judicial review application, the Port Authority brought a motion to strike the Notice of Application. It argued that the application was premature, that the July 19 letter was not a reviewable decision, and that some of the remedies Trigon sought—particularly the relief involving the Minister of Transport—were beyond the Court’s power to grant. The Port Authority also filed an affidavit from its President and CEO, Shaun Stevenson, attaching documents referenced in the Notice of Application, including the letters patent, Land Use Plan and relevant correspondence. Trigon objected to certain paragraphs of this affidavit as containing subjective opinions and editorializing. The Court reviewed the general rule that affidavits are usually not admissible on motions to strike judicial review applications, given the summary nature of judicial review and the assumption that pleaded facts are true at this stage. However, it recognised an exception where an affidavit merely attaches documents already referenced in the application. The judge accepted the attached documents under that exception, while expressly disregarding any unnecessary commentary or opinion in the impugned affidavit paragraphs.

Prematurity and reviewability of the July 19 decision

On the key issue of prematurity, the Port Authority contended that the July 19 letter was only a preliminary step in its Land Use Plan process and thus not fit for judicial review until the entire multi-stage process had run its course. The Court applied a structured approach to prematurity, asking whether there was any alternative recourse available, whether any such recourse would be adequate or effective, and whether there were unusual or exceptional circumstances. It drew guidance from earlier Federal Court decisions, including GCT Canada Limited Partnership v Vancouver Fraser Port Authority, which held that decision-makers cannot insulate themselves from judicial review by simply labelling their decisions “preliminary” while effectively bringing a process to an end. Justice McDonald found that the July 19 letter definitively refused to proceed with Trigon’s section 82 review request unless and until Trigon obtained rights to export LPG. There was no express right of reconsideration or appeal from this refusal, and the suggestion that Trigon could reapply with a “perfected” request did not constitute genuine recourse elsewhere. The Court concluded that the letter effectively ended the relevant administrative process with respect to the section 82 request and that any prejudice arising from this denial was distinct from the prejudice associated with the earlier 2023 refusal to amend the lease for LPG exports. Given that Trigon’s ability to move forward with its proposed project depended in part on obtaining the impact assessment it sought, the July 19 decision had direct legal and practical consequences for Trigon and was at least arguably reviewable. That was sufficient to defeat a motion to strike at this stage.

Remedies sought and the Minister of Transport

Trigon’s Notice of Application seeks various forms of relief: orders quashing and declaring invalid or unlawful the Port Authority’s decision; mandamus requiring the Port Authority to perform a regulatory review and impact assessment under section 82 of the Impact Assessment Act; and, in the alternative, an order directing the Minister of Transport or another appropriate federal delegate to conduct or oversee that assessment. The Minister, who was added as a respondent because of this requested relief, argued on the motion that the Court lacks authority to grant such an order against the Minister. In the Minister’s view, mandamus does not lie against a minister unless a specific statutory duty exists with no residual discretion to refuse, and in any event Parliament intended port authorities, not the Minister, to perform this regulatory function. The Court again drew on the reasoning in the GCT Canada decisions, which had declined at the preliminary stage to rule out similar oversight-style relief as plainly unavailable. Justice McDonald held that it was not “plain and obvious” that the Federal Court lacked jurisdiction to award the oversight or mandamus-type relief Trigon requested. Whether the Court ultimately can or should grant the specific remedies sought by Trigon, in whole or in part, is a merits question better decided by the application judge on a full factual and legal record.

Outcome and implications

In the result, Justice McDonald held that the Port Authority’s motion to strike did not meet the high threshold that applies to striking a judicial review application. There were at least debatable issues as to whether the July 19, 2024 decision was premature, whether it caused legal prejudice to Trigon, and whether the remedies sought—particularly those involving the Minister—could fall within the Court’s remedial jurisdiction. The motion to strike was therefore dismissed, and the judicial review application will proceed to be heard on its merits at a later date. On this procedural motion, the effective successful party is Trigon Pacific Terminals Limited, as its application survived the Respondents’ attempt to have it struck out entirely. The Court did not, however, fix any specific amount of damages or costs in this decision; instead, it ordered that the costs of the motion be “costs in the cause,” meaning they will follow the ultimate outcome of the main judicial review. Because no quantified costs or damages are set out, the total monetary award in favour of the successful party cannot be determined from this decision alone.