Executive Summary: Key Legal and Evidentiary Issues

• Identifying whether the Vancouver Fraser Port Authority or its Board of Directors was the decision-maker determined what the certified record had to contain.
   
• At issue was whether the certified tribunal record under rule 317 of the Federal Courts Rules reached beyond the two documents before the Board to documents used by staff in preparing the Summary Report.
   
• Staff recommendations and their supporting materials were argued to be subsumed in the final decision or part of a continuing course of conduct.
   
• An affidavit stating that only the Board could decide the fee was found to be inadmissible opinion evidence on a question of law.
   
• Allegations of procedural unfairness, as framed and without any allegation of bias, could not make the disputed documents legally relevant.
   
• The Port's broad certification of 217 documents did not expand what rule 317 legally required.
   

Facts of the case

In Pacific Coast Terminals Co. Ltd. v. Vancouver Fraser Port Authority, 2026 FCA 156, five terminal operators (Pacific Coast Terminals Co. Ltd., Viterra Canada Inc., Cascadia Port Management Corporation, Fraser Grain Terminal Ltd. and Alliance Grain Terminal Ltd., together "the Terminals") appealed a Federal Court decision limiting the record in their judicial review of a port fee. Established under the Canada Marine Act, the Vancouver Fraser Port Authority (the Port) operates the Port of Vancouver. The Terminals own and operate shipping and bulk commodity facilities within the port.

In 2017, the Port announced a multi-year plan to improve the capacity and efficiency of port infrastructure and related transportation networks. It formed the Gateway Infrastructure Fee 2 Team (the GIF2 Team), made up of Trade Development and Finance staff and external consultants, to examine infrastructure renewal costs and the fee structure needed to keep the Port self-financing. On October 15, 2021, the Port issued a Notice of Fee Amendments setting a tonnage-based fee, the GIF2022, to apply to all port users. The Terminals sought judicial review and requested the certified record under rule 317. After the Port postponed implementation, transmitted a certified record on January 19, 2022, issued a second notice on February 15, 2022, and postponed implementation again on April 25, 2022, the Terminals discontinued the first application at the prompting of the case management judge.

The Port released its Summary Report on the GIF2022 on September 1, 2022, and sent it to the Board with a draft resolution recommending approval. On September 13, 2022, the Board adopted the resolution without amendment. Those two documents were the only materials before the Board. The Terminals filed a second application alleging that the fees were not fair or reasonable, gave unreasonable preference to certain users, and were adopted without procedural fairness because documents were withheld during consultation. They asked for all documents referred to in or used to prepare the Summary Report, including the Mott MacDonald Study. In response, the Port delivered a "Decision Record" of 217 documents, roughly 4,000 pages, but withheld other documents (the disputed documents) on the basis that the Board had not considered them, they did not exist, or they were not relevant. On January 1, 2023, the new fee regime took effect.

Associate Justice Horne granted the Terminals' rule 318 motion in part (2024 FC 119). Although he found the Board to be the decision-maker, he held that the GIF2 Team's recommendation was subsumed in the final decision, that the decision was part of a continuing course of conduct, that the Port's broad disclosure bolstered that conclusion, and that the procedural fairness allegations justified wider production. On appeal, Strickland J. allowed the Port's appeal in part (2024 FC 1531). She reversed the production order, upheld the finding that the Board was the decision-maker, and remitted the question of whether the disputed documents were relevant to procedural fairness to the Associate Judge. The Port cross-appealed that remittal.

Policy and legislative provisions at issue

Subsections 49(1), 49(3) and 50(1) of the Canada Marine Act allow a port authority to fix fees for ships, vehicles, aircraft and persons using the port, for goods moved through it, and for services, rights or privileges it provides. Fees must allow the authority to operate on a self-sustaining financial basis, must be fair and reasonable, and must not unjustly discriminate among users or give any user an undue preference or disadvantage. Section 20 of the Act makes the board of directors responsible for the management of the activities of a port authority. According to the Port's affidavit, the Board may delegate management of the Port to an officer under section 21.1, but had not done so for fee-setting. The Terminals also relied on paragraph 7.1(b) of the Port's Letters Patent, which authorizes the Port to create, impose, collect and otherwise fix fees authorized by the Act.

Rule 317 of the Federal Courts Rules allows a party to request material "relevant to an application" that is in the decision-maker's possession. The Terminals invoked rule 318 to seek an order compelling production of the disputed documents. Rules 306 and 307 cover the affidavits filed by applicants and respondents, and rule 313 lets the court order further material where the application records are incomplete. Subsection 18.1(1) of the Federal Courts Act does not limit judicial review to decisions or orders, permitting applications by anyone directly affected by the matter in respect of which relief is sought.

Reasoning and analysis

Writing for a unanimous panel, Rennie J.A. applied the appellate standard from Housen v. Nikolaisen. Rule 317, he explained, codifies the common law writ of certiorari and requires the immediate, non-discretionary transmittal of the tribunal record to the supervising court. It is not civil discovery, and relevance is measured against the application and limited to material that was actually before the decision-maker. Exceptions exist where procedural fairness or bias is alleged.

On the identity of the decision-maker, the Court agreed with both lower decisions that it was the Board. Before reaching the merits, it placed no weight on the affidavit of the Port's director of customer engagement, finding that its statement that only the Board had authority to decide the fee was inadmissible opinion evidence on a question of law. On the merits, the Court relied on the corporate law principle that a corporation acts through its directing mind, citing Lennard's Carrying Co. v. Asiatic Petroleum Co. Section 20 gives the Board responsibility for managing the Port's activities, which includes fixing fees, so the Port acted "through, with, and by the authority of its Board of Directors." Staff recommendations are generally not incorporated into the final decision (Gitxaala Nation v. Canada, 2016 FCA 187), and the Summary Report did not become the Board's decision.

The Court distinguished GCT Canada Limited Partnership v. Vancouver Fraser Port Authority, 2021 FC 624. In that case, a senior officer made the decision, but the evidence showed the Board had been consulted, so the record properly included materials before the Board. Where the actual decision-maker consulted a higher authority with power to bind or instruct, the record may expand accordingly. Here, nothing in the record supported the argument that senior officers were the decision-makers. The Court also found that Canadian Constitution Foundation v. Canada (Attorney General), 2022 FC 1233, did not assist, because the relationship between Cabinet and the Governor in Council is not analogous to that between a corporation and its board.

Each of the Terminals' grounds for expanding the record failed. China Mobile Communications Group Co. v. Canada (Attorney General), 2023 FCA 202, turned on the statutory structure of the Investment Canada Act, and the idea that an earlier decision may be subsumed in a later one is better understood as addressing when multiple decisions forming a course of conduct can be challenged in a single application. On the continuing course of conduct argument, the Court noted that although consultations ran from 2017 to 2022, only the September 13, 2022 Decision affected the Terminals' legal rights or interests. As for meaningful judicial review, the Court identified existing safeguards, including rule 318 itself, the court's power under rule 313 to order further material, and the ability to seek an adverse inference from missing evidence. Considering any of these was premature, since affidavits under rules 306 and 307 had not yet been exchanged. The Court added that reasonableness review itself pushes respondents toward a full record, because a decision whose record is too scant to permit reasonableness review must be quashed, and that decision-makers cannot backfill their reasons with after-the-fact affidavits.

On procedural fairness, the Court agreed with Strickland J. that the Associate Judge had not addressed the relevance of the disputed documents to those allegations, but held that remitting the question was inappropriate. No bias had been alleged, and there was no legal basis on which the disputed documents could be relevant to the procedural fairness arguments as framed. The Terminals could establish the existence, scope and breach of any duty of fairness from their own knowledge of the process. Their legitimate expectations claim likewise depended on what they were told compared with how the process unfolded, so documents they never possessed could have no bearing on it. Finally, the Court gave no weight to the Port's broad certification in the first judicial review [note: para. 112 refers to the "first judicial review," while para. 16 places the 217-document Decision Record in the second application]. It noted that a party's conduct may inform the evidentiary question of who decided and what was before them, but does not change the legal scope of rule 317.

Ruling and overall outcome

The Federal Court of Appeal dismissed the Terminals' appeal and allowed the Port's cross-appeal, all with costs, in reasons delivered September 18, 2026 [note: the reasons page is dated 20260916, while the cover page and the judgment delivery line state September 18, 2026]. Success on both the appeal and the cross-appeal went to the Vancouver Fraser Port Authority. Its Board was confirmed as the decision-maker, the rule 317 record was confined to the Summary Report and draft resolution, and the procedural fairness relevance question was not sent back to the Associate Judge. Costs were ordered, but the decision fixes no amount, so no monetary figure can be determined from the judgment.