T-553-92
James Doyle (Sr) & Sons Limited (Applicant)
v.
Minister of Fisheries and Oceans (Respondent)
INDEXED AS. JAMES DOYLE (SR) & SONS LTD. V. CANADA
(MINISTER OF FISHERIES AND OCEANS) (TD.)
Trial Division, Reed J.—Halifax, April 14; Vancou-
ver, May 13, 1992.
Construction of statutes — Public Works Act, s. 35(1) —
Application for declaration S1/82-117, order in council pur
porting to transfer management and control over harbour and
marine facilities at Port -aux -Basques ultra vires authority of
Governor in Council under Public Works Act, s. 35(1) to trans
fer management of any public work or any power, duty or
function with respect to any work between ministers — S. 35
applies only to "public works" i.e. physical things or struc
tures subject to construction — S1/82-117 describing transfer
as including "150 feet outside the longest projection of each
structure on all sides" — Transferred wharves, together with
immediately adjacent area required to control use of wharves
— Not transferring property at large (harbour), but public
works — Within authority under s. 35(1) — SI/82-117 not void
for uncertainty — Precision required depending upon statutory
instrument's audience — No confusion among federal minis
ters or administrators as to facilities covered.
Public works — Public Works Act, s. 35(1) giving Governor
in Council authority to transfer between ministers management
of any public work or any power, duty or function with respect
to any work between ministers — "Public work" referring to
physical things or structures subject to construction — Order
in council purporting to transfer management over harbour
and marine facilities not ultra vires s. 35(1) authority — Trans
fer of "150 feet outside the longest projection of each structure
on all sides" meaning wharves and adjacent area required to
control use of wharves, not property at large.
This was an application for a declaration that an order in
council, S1/82-117, which purported to transfer management
and control over the harbour and marine facilities at Port -aux -
Basques from the Minister of Transport to the Minister of
Fisheries and Oceans, is ultra vires the authority provided by
Public Works Act, subsection 35(1) and is void for uncertainty.
Subsection 35(1) provides that the Governor in Council may
transfer the management, charge and direction of any public
work, or any power, duty, or function with respect to any work
between ministers. In 1949 public harbours, wharves, break
waters, and aids to navigation belonging to Newfoundland
were transferred to the federal government. In 1957 the har
bour of Port -aux -Basques was declared to be a public harbour.
At that time, the Government Harbours and Piers Act provided
that harbours, wharves and piers which were the property of
Canada were under the control and management of the Minis
ter of Transport. In 1978 the Fishing and Recreational
Harbours Act was enacted. Section 4 thereof gave the control
and administration of harbours to the Minister of Fisheries and
Oceans. Section 3 provided that nothing in the Act affected the
powers of the Minister of Transport under any other Act, and
section 28 repealed section 4 of the Government Harbours and
Piers Act so that the use, maintenance and ordinary repairs of
all harbours, wharves, piers and breakwaters were the responsi
bility of the Minister of Transport, except those as were pursu
ant to any other Act under the control and management of any
other minister. In 1982 Schedule Ito the Fishing and Recrea
tional Harbours Regulations was amended by SOR/82-91l to
add "All property including facilities" at Channel (Port -aux -
Basques) to the list of harbours subject to the Regulations. If
such designation was valid, the harbour would thereafter fall
under the authority of the Minister responsible for the Fishing
and Recreational Harbours Act, the Minister of Fisheries and
Oceans. Prior to the issuance of SOR/82-9l I, SI/82-117 was
enacted. The Schedule thereto provided that for designated
harbours and marine facilities (including Channel), the limits
of the property were that area measured 150 feet outside the
longest projection of each structure on all sides. 1983 amend
ments to the Government Harbours and Piers Act renamed it
the Public Harbours and Port Facilities Act, and gave the
Minister of Transport the control and management of harbours
declared to be public harbours, and port facilities and harbours
belonging to Canada other than those under the control and
management of any other minister. Every public harbour on
the day before the Act came into force was deemed to have
been declared a public harbour.
The applicant argued that SI/82-117 was invalid because
subsection 35(1) did not authorize the Governor in Council to
transfer control over a harbour from one minister to another.
Secondly, it was void for uncertainty: the location of "Chan-
nel" at Port -aux -Basques was not well known and "All prop
erty including facilities" was so broad and general a descrip
tion as to be impossible to interpret. Additionally, it was
argued that SOR/82-911 could not transfer control over the
harbour at Port -aux -Basques from the Minister of Transport to
the Minister of Fisheries and Oceans because section 3 of the
Fishing and Recreational Harbours Act specifically states that
nothing in that Act applies to or affects any of the powers or
duties of the Minister of Transport. Lastly, it was argued that
as a public harbour Port -aux -Basques comes under the author
ity of the Minister of Transport by operation of section 32 of
S.C. 1980-81-82-83.
Held, the application should be dismissed.
SI/82-117 was not ultra vires the authority provided in Pub
lic Works Act, subsection 35(1). Subsection 35(1) did not
authorize the transfer of the control over harbours between
ministers. Part I of the Act applied to public works and prop
erty under the control of the Department of Public Works. Part
Il, within which subsection 35(1) falls, applies only to "public
works" which means physical things or structures that are the
subject of construction. Harbours, as opposed to harbour and
marine facilities, are not public works. (The respondent argued
that subsection 35(1) was not limited to public works because
section 2, which limits the application of Part Ito public works
and property under the control of the Department of Public
Works expressly states that the application of Part II is not so
limited. That lack of limitation means that Part II will apply to
public works that are under the control of any departments and
not merely those under the control of the Department of Public
Works. Section 2 does not expand the scope of subsection
35(1) so that it applies not only to public works, but also to all
property, including all harbours, owned by the federal govern
ment.) Public works such as wharves could be transferred from
one minister to another pursuant to subsection 35(1). The
description of the transfer in SI/82-117 as including "150 feet
outside the longest projection of each structure on all sides"
would have been pointless unless it was intended that struc
tures (public works), not property at large were being trans
ferred. If a statutory instrument can reasonably be interpreted
in such a way that brings it within the scope of the provision
pursuant to which it was issued, then it should be so inter
preted. Subsection 35(1) states that not only may public works
be transferred from the control of one minister to another, but
also "any power, duty or function with respect to any work".
What was transferred were wharves, together with such imme
diately adjacent area as is necessary to exercise control over
those public works. Without control over the surrounding area
the responsible minister would not be able to control the use of
the wharves.
SI/82-117 was not void for uncertainty. The same level of
precision may not be necessary where a statutory instrument is
addressed to ministers and administrators of the relevant legis
lation as would be required if it were addressed primarily to the
public at large. There was no evidence of confusion among the
respective ministers or officials as to which facilities were to
be administered by whom or what facilities were covered.
Fishing and Recreational Harbours Act, section 3 refers
only to the powers and duties of the Minister of Transport, not
to the geographic scope, i.e. the specific ports, to which those
powers and duties pertain. Paragraph 9(a), which gives the
Governor in Council power to make regulations describing the
fishing or recreational harbours that are under the control and
administration of the Minister for the purposes of the Act, was
enacted to allow the Governor in Council to designate those
ports which were to fall under the authority of the Minister
responsible for the Fishing and Recreational Harbours Act,
regardless of whether or not the harbours had previously been
under the control of the Minister of Transport. The amendment
to section 4 of the Government Harbours and Piers Act pro
vides that the Minister of Transport's authority over harbours
exists only to the extent that such harbours are not pursuant to
any other Act under the control and management of any other
minister. A designation by the Governor in Council pursuant
to paragraph 9(a) would place the harbour at Port -aux -Basques
under the control of another minister pursuant to that Act.
The authority given to the Minister of Transport as a result
of a harbour having been declared to be a public harbour only
extends to the appointment and control of harbour masters as
well as to the establishing of fees for the use of the harbour and
the implementation of provisions respecting the use of the har
bour. These provisions are not inconsistent with control of the
wharves by another minister.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to amend the National Harbours Board Act, the
Government Harbours and Piers Act, the Harbour
Commissions Act, the Canada Shipping Act and the
Fishing and Recreational Harbours Act, S.C. 1980-81-
82-83, c. 121, ss. 18, 32.
Canada Shipping Act, R.S.C. 1952, c. 29, s. 600.
Canada Shipping Act, R.S.C. 1970, c. S-9 [now R.S.C.,
1985, c. S-9.]
Fishing and Recreational Harbours Act, S.C. 1977-78, c.
30, ss. 2, 3, 4, 8, 9 (as am. by S.C. 1984, c. 40, s. 30),
27, 28.
Fishing and Recreational Harbours Regulations, SOR/78-
767, Schedule I (as am. by SOR/82-911).
Newfoundland Act, 12-13 Geo. VI, c. 22 (U.K.) (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the
Constitution Act, 1982, Item 21) [R.S.C., 1985, Appen
dix No. 32], s. 33.
Proclamation declaring Port aux Basques, Newfoundland,
to be a public harbour, SOR/58-2l.
Public Harbours and Port Facilities Act, R.S.C. 1952, c.
135, ss. 1 (as am. by S.C. 1980-81-82-83, c. 121, s. 18),
2 (as am. idem), 3 (as am. idem), 3.1 (as am. idem), 4
(as am. idem), 5 (as am. idem).
Public Harbours and Port Facilities Act, R.S.C., 1985, c.
P-29, s. 8(4).
Public Works Act, R.S.C. 1970, c. P-38, ss. 2, 35(1).
Public Works Act, R.S.C., 1985, c. P-38, s. 36(1).
Transfer from the Minister of Transport to the Minister of
Fisheries and Oceans, the Management, Charge and
Direction of Certain Harbours and Marine Facilities
Under the Act, SI/82-117.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
The King v. Dubois, [1935] S.C.R. 378; [1935] 3 D.L.R.
209; Wolfe v. The King (1921), 63 S.C.R. 141; 63 D.L.R.
647; The King v. Lefrancois (1908), 40 S.C.R. 431; 5
E.L.R. 268; In re Hassard and Corporation of the City of
Toronto (1908), 16 O.L.R. 500 (Div. Ct.).
CONSIDERED:
McKay et al. v. The Queen, [1965] S.C.R. 798; (1965), 53
D.L.R. (2d) 532; Heppner v. Province of Alberta (1977), 6
A.R. 154; 80 D.L.R. (3d) 112; 4 Alta. L.R. 139 (S.C. App.
Div.).
APPLICATION for a declaration that order in
council SI/82-117 is ultra vires. Application dis
missed.
COUNSEL:
Joseph S. Hutchings for applicant.
John J. Ashley for respondent.
SOLICITORS:
Poole, Althouse, Clarke, Thompson & Thomas,
Corner Brook, Newfoundland, for applicant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for order rendered in
English by
REED J.: The applicant seeks a declaration that
SI/82-117, an order in council which purportedly
transferred management and control over the harbour
and marine facilities at Port -aux -Basques from the
Minister of Transport to the Minister of Fisheries and
Oceans, is void and of no effect. It is argued that that
order in council is ultra vires the authority provided
by subsection 35(1) of the Public Works Act, R.S.C.
1970, c. P-38 (now subsection 36(1) of R.S.C., 1985,
e. P-38). In addition, it is argued that SI/82-117 is
void for uncertainty. These issues were set down for
hearing by order of Mr. Justice Rouleau dated Febru-
ary 18, 1992.
The applicant's interest in seeking such declaration
arises out of a refusal by the Minister of Fisheries and
Oceans to provide the applicant with a licence to off
load fish at the wharf facilities in Port -aux -Basques.
The applicant had been granted such permission in
previous years.
Legislative History
It is necessary to consider SI/82-117 in the context
of the legislative history surrounding it. In 1949 with
the union of Newfoundland and Canada, certain pub-
lic works and property were transferred to the federal
government: i
33. The following public works and property of Newfound-
land shall become the property of Canada when the service
concerned is taken over by Canada, subject to any trusts
existing in respect thereof, and to any interest other than that of
Newfoundland in the same, namely,
(a) the Newfoundland Railway, including rights of way,
wharves, drydocks, and other real property, rolling stock,
equipment, ships, and other personal property;
(b) the Newfoundland Airport at Gander, including build
ings and equipment, together with any other property used
for the operation of the Airport;
(c) the Newfoundland Hotel and equipment;
(d) public harbours, wharves, break-waters, and aids to navi
gation;
On December 13, 1957, pursuant to section 600 of
the Canada Shipping Act, 2 the harbour of Port -aux -
Basques was declared by SOR/58-21 to be a public
harbour:
... WHEREAS it is expedient and Our Privy Council for Canada
has advised that the harbour of Port aux Basques, in the Prov
ince of Newfoundland, be declared a public harbour, the limits
of which shall be defined as follows:
All tidal waters of Port aux Basques west of Longitude
59° 07°W. and north of Latitude 47° 34°N.
Now Know YE that We, by and with the advice of Our Privy
Council for Canada, do by this Our Proclamation declare the
said harbour of Port aux Basques to be a public harbour, the
limits of which shall be as hereinbefore defined.
At that time, the Government Harbours and Piers
Act, 3 provided, subject to some exceptions, 4 that
harbours, wharves and piers which were the property
of Canada were under the control and management of
the Minister of Transport:
2. In this Act, "Minister" means the Minister of Transport.
3. Nothing in this Act applies to any harbour under the
administration, management and control of the National
I British North America Act, /949, now entitled New-
. foundlandAct, 12-13 Geo. VI, c. 22 (U.K.) (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 21) [R.S.C., 1985, Appendix No. 32].
2 R.S.C. 1952, c. 29.
3 R.S.C. 1952, c. 135.
4 The exceptions are not relevant for present purposes.
Harbours Board or of any commissioners appointed under any
Act of the Parliament of Canada.
4. Except such wharfs, piers and breakwaters as are on or
connected with canals, the use, maintenance and ordinary
repairs of all harbours, wharfs, piers and breakwaters con
structed or completed at the expense of Canada, or in any way
the property of Canada, and the making and enforcing of regu
lations concerning such use, maintenance and ordinary repairs,
and the collection of tolls and dues for such use, shall be under
the control and management of the Minister.
5. Such construction and repairs and the works connected
therewith, other than maintenance and ordinary repairs, shall
be under the control and direction of the Minister of Public
Works.
This situation essentially remained unchanged
until the Fishing and Recreational Harbours Act was
enacted in 1978. 5 The relevant provisions of that Act
state:
3. Nothing in this Act applies to or affects
(a) any harbour, works or property under the jurisdiction of
the National Harbours Board or of any harbour Commission
established under any Act of Parliament;
(b) any harbour, wharf, pier or breakwater under the control
and management of any member of the Queen's Privy Coun
cil for Canada other than the Minister; or
(e) any of the powers or duties of the Minister of Transport
or the Minister of Public Works under any other Act of Par
liament or regulations made pursuant thereto.
4. The use, management and maintenance of every sched
uled harbour, the enforcement of regulations relating thereto
and the collection of charges for the use of every scheduled
harbour are under the control and administration of the Minis
ter [assumed for present purposes to be the Minister of Fisher
ies and Oceans]. ( '
8. The Minister [of Fisheries and Oceans] may, subject to
the regulations,
(a) lease any scheduled harbour or any part thereof to any
persons;
(b) grant a licence to any person for the use of any scheduled
harbour or any part thereof; and
(c) enter into an agreement with the government of any
province or any agency thereof for the occupancy and use of
any scheduled harbour or any part thereof.
5 S.C. 1977-78, c. 30.
t, S. 2 provides:
2....
"Minister" means such member of the Queen's Privy Coun
cil for Canada as is designated by the Governor in Coun
cil to act as the Minister for the purposes of this Act.
9. The Governor in Council may make regulations
(a) prescribing schedules naming and delimiting or describ
ing the fishing or recreational harbours that are under the
control and administration of the Minister for the purposes
of this Act;
(b) for the maintenance of order and the safety of persons
and property at any scheduled harbour;
(c) not inconsistent with any other Act of Parliament or reg
ulations made thereunder, for the control of mooring, berth
ing, loading and discharging of vessels at any scheduled har
bour;
(d) not inconsistent with any other Act of Parliament or reg
ulations made thereunder, for the control of pollution at any
scheduled harbour;
(e) prescribing standards for the accommodation and ser
vices provided or to be provided at any scheduled harbour;
(f) prescribing charges for the use of any scheduled harbour;
(g) prescribing the duties or functions of persons appointed
or designated under this or any other Act of Parliament to
supervise or manage any fishing or recreational harbour to
which this Act applies;
27. (1) Every person appointed or designated to perform the
duties or functions of a wharfinger pursuant to section 6 of the
Government Harbours and Piers Act and who is employed in
that capacity upon the coming into force of this Act at any
fishing or recreational harbour to which this Act applies con
tinues to act in that capacity in respect of that harbour until the
termination of his appointment or designation by the Minister,
subject to such alteration or variation of his duties or functions
as the Minister may direct or as may be prescribed by regula
tions made under this Act.
(2) For the purposes of this Act, the Minister may appoint
and fix the remuneration of such officers or employees as he
thinks proper for the operation, administration and manage
ment of any scheduled harbours, and the officers or employees
so appointed shall perform such duties or functions as the Min
ister may direct or as may be prescribed by regulations made
under this Act.
28. Section 4 of the Government Harbours and Piers Act is
repealed and the following substituted therefor:
"4. Except such wharfs, piers and breakwaters as are on or
connected with canals, and such harbours, wharfs, piers and
breakwaters as are, pursuant to any other Act of Parliament,
under the control and management of any other member of the
Queen's Privy Council for Canada, the use, maintenance and
ordinary repairs of all harbours, wharfs, piers and breakwaters
constructed or completed at the expense of Canada, or in any
way the property of Canada, and the making and enforcing of
regulations concerning such use, maintenance and ordinary
repairs, and the collection of tolls and dues for such use, are
under the control and management of the Minister [the Minis
ter of Transport]." [Underlining added.]
SOR/82-911 Issued Pursuant to Fishing and Recrea
tional Harbours Act
On October 8, 1982, SOR/82-911 [Fishing and
Recreational Harbours Regulations, SOR/78-767,
Schedule I] was issued pursuant to section 9 of the
Fishing and Recreational Harbours Act. 7 This named
Channel (Port -aux -Basques) in the federal electoral
constituency of Burin-St. George's as one of the
harbours listed in Schedule I of the Regulations. If
such designation is valid the harbour would thereafter
fall under the authority of the Minister responsible
for that Fishing and Recreational Harbours Act. As
has been noted, it is assumed that this would be the
Minister of Fisheries and Oceans.
SI/82-117 Issued Pursuant to Public Works Act
Prior to the issuance of SOR/82-911, on May 20,
1982, SI/82-117 purported to transfer control and
management over the harbour and marine facilities of
Port -aux -Basques from the Minister of Transport to
the Minister of Fisheries and Oceans. This was
effected pursuant to subsection 35(1) of the Public
Works Act, R.S.C. 1970, c. P-38, Part II. That provi
sion provided:
35. (1) The Governor in Council may at any time transfer
the management, charge and direction of any public work, or
any power, duty, or function with respect to any work or class
of works, whether public or private, that is assigned to or
vested by statute in any minister or department, to any other
minister or department; and from the date appointed for that
purpose by the Governor in Council, such power, duty, or
function shall be transferred to, and vested in such other minis
ter or department; and the provisions of this Act, so far as they
are applicable, apply to any work or property the maintenance,
repair, control or management of which is transferred under
this section. [Underlining added.]
Order in Council SI/82 - I17 reads as follows:
Transfer from the Minister of Transport to the Minister
of Fisheries and Oceans, the Management, Charge and
Direction of Certain Harbours and Marine Facilities
Under the Act
P.C. 1982-1545 20 May, 1982
His Excellency the Governor General in Council, on the rec
ommendation of the Minister of Transport and the Minister of
7 S.C. 1977-78, c. 30; editorial amendments were made to
section 9 by S.C. 1980-81-82-83, c. 47, s. 53 (Schedule II, Item
10 (F.)) and S.C. 1984, c. 40, s. 30.
Fisheries and Oceans, pursuant to subsection 35(I) of the Pub
lic Works Act, is pleased hereby to transfer from the Minister
of Transport to the Minister of Fisheries and Oceans the man
agement, charge and direction of those harbours and marine
facilities vested in the Minister of Transport under the Govern
ment Harbours and Piers Act, listed in the schedule hereto.
SCHEDULE
NOTES:
1. The federal constituencies listed in this schedule are those
in effect on March 26, 1979.
2. For all harbours and marine facilities identified by an
asterisk, the limits of the property are that area measured 150
feet outside the longest projection of each structure on all
sides.
3. Where there is a reference to a plan number in a descrip
tion of property, the property that is subject to transfer is
shown on the plan of that number in the records of the Depart
ment of Transport.
•
NEWFOUNDLAND/TERRE-NEUVE
Harbours
or Marine Federal
Name-Location Facilities Constituency
All property
*Channel including
(Port -aux -Basques) facilities Burin-St. George's
[Underlining added.]
Public Harbours and Port Facilities Act of 1983
In 1983, amendments to a number of statutes deal
ing with harbours and port facilities were enacted by
S.C. 1980-81-82-83, c. 121, s. 18. The Government
Harbours and Piers Act was renamed the Public
Harbours and Port Facilities Act and the relevant
provisions thereafter read:
2. In this Act,
"goods" includes all personal property and movables other
than vessels;
"Minister" means such member of the Queen's Privy Council
for Canada as is designated by the Governor in Council as
the Minister for the purposes of this Act [Minister of Trans
port by virtue of SI/83-55];
"port facility" means any wharf, pier, break-water or other
work or installation located in, on or adjacent to navigable
waters and includes any land to which it is attached;
"public harbour" means any harbour under the control and
management of the Minister by virtue of section 4;
"public port facility" means any port facility under the control
and management of the Minister by virtue of section 4;
3. (1) The Governor in Council may, by order,
(a) declare any area covered by water within the jurisdiction
of Parliament, the limits of which area are defined by the
order, to be a public harbour;
(b) alter the limits of any public harbour; and
(c) declare any port facility to be a public port facility.
(2) Every order made pursuant to this section shall be pub
lished in the Canada Gazette.
3.1 (1) The Governor in Council may, on the recommenda
tion of the Minister, by order, terminate the application of this
Act to any public harbour or public port facility if the Gover
nor in Council is of the opinion that the termination will
enable the improvement of the administration of the port or
facility.
(2) Every order made pursuant to this section shall be pub
lished in the Canada Gazette.
4. The Minister [of Transport] has the control and manage
ment of
(a) any harbour declared to be a public harbour under sec
tion 3;
(b) any port facility declared to be a public port facility
under that section; and
(c) all port facilities constructed, completed or acquired at
the expense of Canada and all harbours in any way the prop
erty of Canada other than those that
(i) are under the control and management of any member
of the Queen's Privy Council for Canada other than the
Minister [of Transport],
(ii) the Governor in Council has authorized a harbour
Commission to administer and develop on behalf of Her
Majesty in right of Canada,
(iii) are under the administration, management and con
trol of the Canada Ports Corporation or a local port corpo
ration as defined in section 2 of the Canada Ports Corpo
ration Act, or ... . [Underlining added.]
Section 32 of S.C. 1980 - 81 - 82 - 83, c. 121 8 provided:
8 This section is now s. 8(4) of R.S.C., 1985, c. P-29 [Public
Harbours and Port Facilities Act] and reads:
(Continued on next page)
32. Every harbour that, on the day immediately preceding
the day on which this Act comes into force, was a public har
bour to which Part XII of the Canada Shipping Act applied
shal [sic] be deemed to have been declared a public harbour
under the Public Harbours and Port Facilities . Act. [Under-
lining added.]
There was no evidence before me that the 1957 dec
laration of Port -aux -Basques as a public harbour has
even been rescinded.
Applicant's Position
Counsel for the applicant argues that S1/82-117 is
invalid because subsection 35(1) of the Public Works
Act does not authorize the Governor in Council to
transfer control over a harbour from one minister to
another. Secondly, he argues that SI/82-117 is void
for uncertainty: the location of "Channel" at Port-
aux -Basques is not well known if at all and "All
Property including facilities" is so broad and general
a description as to be impossible to interpret.
It is argued that in so far as SOR/82-911 is con
cerned it could not effectively transfer control over
the harbour at Port -aux -Basques from the Minister of
Transport to the Minister of Fisheries and Oceans
because section 3 of the Fishing and Recreational
Harbours Act specifically states that nothing in that
Act applies to or affects any of the powers or duties
of the Minister of Transport. And lastly, it is argued
that Port -aux -Basques has always been and remains a
public harbour under the Canada Shipping Act
[R.S.C., 1985, c. S-9] and therefore by virtue of sec
tion 32 of S.C. 1980-81-82-83, c. 121 (now subsec
tion 8(4) of R.S.C., 1985, c. P-29) the harbour of
Port -aux -Basques remains under the control of the
Minister of Transport.
Considerations
In my view, counsel for the applicant's argument
that subsection 35(1) of the Public Works Act did not
(Continued from previous page)
8....
(4) Every harbour that on February 23, 1983 was a public
harbour to which Part XII of the Canada Shipping Act, chapter
S-9 of the Revised Statutes of Canada, 1970, applied shall be
deemed to have been declared a public harbour under para
graph (l)(a).
authorize the transfer of the control over harbours as
between ministers is correct. A distinction exists
between the scope of Part I of that Act and the scope
of Part II within which subsection 35(1) falls. Part I
applies to public works and property under the con
trol of the Department of Public Works. Part II
applies only to "public works", which as counsel for
the applicant submitted is a term appropriately
descriptive of physical things or structures that are
the subject of construction. 9 Harbours as opposed to
harbour and marine facilities would not as such be
public works.
Counsel for the respondent argues that subsection
35(1) which as has been noted is found in Part II is
not limited to public works as such because section 2
of the Act states:
2. This Act is divided into two Parts; Part I applies exclu
sively to the Department of Public Works and the public works
and property under the control of that Department but Part II is
not by this section limited in its application. [Underlining
added.]
I read the lack of limitation on Part II referred to in
section 2 as meaning that Part II of the Act will apply
to public works that are under the control of any
departments and not merely those under the control
of the Department of Public Works. I do not read sec
tion 2 as expanding the scope of subsection 35(1) so
that it applies not only to public works hut also to all
property, including all harbours, owned by the fed
eral government.
There is no doubt, however, that public works such
as wharves could be transferred from one minister to
another pursuant to subsection 35(1). Does SI/82-117
purport to do more than that? I am not convinced that
it does. While the title of the statutory instrument
refers to "Harbours and Marine Facilities" [under-
lining added] and the executory clause uses a similar
wording, Note 2 at the commencement of the Sched
ule suggests that in those locations marked with an
asterisk it is structures (i.e. public works), not prop
erty at large, which are being transferred. Otherwise
there would be no point in describing the transfer as
including an "area measured 150 feet outside the
9 See, for example, The King v. Dubois, [1935] S.C.R. 378;
Wolfe v. The King (1921), 63 S.C.R. 141; The King v. L.efran-
çois (1908), 40 S.C.R. 431 as illustrative albeit with respect to
a different statutory provision.
longest projection of each structure on all sides". If a
statutory instrument can reasonably be interpreted in
a way that brings it within the scope of the provision
pursuant to which it was issued, then it is appropriate
to interpret it in that fashion)° This is particularly
true in this case where the audience to which the
instrument is addressed is composed primarily of fed
eral officials who have the duty of administering the
various statutes and regulations applicable to the
facilities in question.
In so far as the transfer not only of the public work
(i.e. in this case the wharves) but also of "150 feet
outside the longest projection of each structure on all
sides" is concerned, this in my view, falls within the
authority granted by subsection 35(1). That provision
states that not only may public works he transferred
from the control of one minister to another hut also
"any power, duty, or function with respect to any
work". What was transferred in the present case were
wharves 11 together with such immediately adjacent
area as is necessary to exercise control over those
public works. Without control over the surrounding
area the responsible minister would not be able to
control the use of the wharves. Therefore, although I
am of the view that subsection 35(1) of the Public
Works Act only authorized the transfer of control over
public works as between ministers, I am not con
vinced that SI/82-117 does more than that. Accord
ingly, SI/82-117 is not void on the ground that it
exceeds the scope of subsection 35(1).
io In McKay et al. v. The Queen, [1965] S.C.R. 798, at pp.
803-804, it was stated:
... if an enactment, whether of Parliament or of a legisla
ture or of a subordinate body to which legislative power is
delegated, is capable of receiving a meaning according to
which its operation is restricted to matters within the power
of the enacting body it shall be interpreted accordingly.
In Heppner v. Province of Alberta (1977), 6 A.R. 154 (S.C.
App. Div.), at p. 164, Lieberman J.A. stated:
A court when considering the validity of subordinate legisla
tion must proceed on the assumption that such legislation is
within the authority conferred by the Act and will not declare it
invalid unless there is clear evidence to support such a finding.
See also In re Hassard and Corporation of the City of Toronto
(1908), 16 O.L.R. 500 (Div. Ct.), at p. 513.
The affidavit of Clarence Butt dated March 25, 1992 des
cribes the piers which were transferred as opposed to those
which were built for the Department of Fisheries and Oceans
in late 1983 and early 1984.
These considerations raise the applicant's argu
ment that SI/82-117 is void for uncertainty: no one
knows where Channel (Port -aux -Basques) is; no one
knows whether there are two geographical entities or
one although the applicant did learn recently that
Channel is a part of Port -aux -Basques which was set
tled around the harbour area; it is not clear on the
face of the statutory instrument exactly what is
encompassed by the term "All property including
facilities". While there is no doubt that the descrip
tion in question in the context of the instrument as a
whole leaves much to be desired, I am not prepared
to find the particular provision void for uncertainty. I
accept counsel for the respondent's argument that the
same level of precision may not be necessary in this
case as would be required if the statutory instrument
were addressed primarily to the public at large. The
order in council is addressed primarily to ministers
and the officials who administer the relevant Acts
and regulations. There is no evidence that there has
ever been any confusion among the respective minis
ters or officials as to which facilities were to he
administered by whom or what facilities were cov
ered. In the circumstances I am not prepared to cate
gorize the provision as void for uncertainty.
An additional argument raised by the applicant is
that SOR/82-911 is not effective to transfer authority
over the Port -aux -Basques harbour from the Minister
of Transport to the Minister of Fisheries and Oceans
because section 3 of the Fishing and Recreational
Harbours Act expressly states that nothing in the Act
applies to or affects any of the powers or duties of the
Minister of Transport. It is not strictly necessary for
me to decide this issue since it was not part of Mr.
Justice Rouleau's order of February 18, 1992. Never
theless, having heard arguments with respect to
SOR/82-911, I shall set out some tentative views.
Section 3 of the Fishing and Recreational
Harbours Act, in my view, can be read as referring
only to the powers and duties of the Minister of
Transport, not to the geographic scope (i.e., the spe
cific ports) with respect to which those powers and
duties pertain. It seems to me that paragraph 9(a) was
enacted to allow the Governor in Council to desig
nate (by listing in Schedule I to the Regulations)
those ports which thereafter were to fall under the
authority of the minister responsible for the Fishing
and Recreational Harbours Act regardless of whether
or not the harbours had previously been under the
control of the Minister of Transport. I read the
amendment to section 4 of the Government Harbours
and Piers Act (section 28 of the Fishing and Recrea
tional Harbours Act) as being designed to dovetail
with that objective. Thus, it provides that the Minister
of Transport's authority over harbours exists only to
the extent that such "harbours, wharfs, piers and
breakwaters" are not "pursuant to any other Act of
Parliament, under the control and management of any
other member of the Queen's Privy Council for
Canada". A designation by the Governor in Council
pursuant to paragraph 9(a) of the Fishing and Recre
ational Harbours Act would place the harbour at
Port -aux -Basques under the control of another minis
ter pursuant to that Act. I note also that the regula-
tion-making authority in paragraph 9(a) of the Fish
ing and Recreational Harbours Act is not limited by
the admonition that regulations made thereunder are
not to be "inconsistent with any other Act of Parlia
ment". Paragraphs 9(c) and 9(d) are so limited. These
are tentative observations only because I do not feel
sufficient evidence was in front of me on how
SOR/82-911 and other statutory instruments passed
pursuant to paragraph 9(a) operate in their entirety in
the context of the scheme which was put in place in
1978 by the Fishing and Recreational Harbours Act.
This leaves for consideration counsel's argument
that as a public harbour Port -aux -Basques comes
under the authority of the Minister of Transport by
operation of section 32 of S.C. 1980-81-82-83, c. 121
(now section 8 of R.S.C., 1985, c. P-29). Again this
is an issue that was not expressly addressed in Mr.
Justice Rouleau's order of February 18, 1992.
As I understand counsel's argument it is that Port-
aux -Basques has always been and remains a public
harbour: first under the Canada Shipping Act, R.S.C.
1952, c. 29, Part X; then, continued as such under the
Canada Shipping Act, R.S.C. 1970, c. S-9, Part XII;
and continued again as such under the Public
Harbours and Port Facilities Act which was first
enacted by S.C. 1980-81-82-83, c. 121, s. 18 together
with the transitional provision, section 32 (now
R.S.C., 1985, c. P-29). Even if this argument is
sound, it would appear that the authority given to the
Minister of Transport as a result of a harbour having
been declared to be a public harbour only extends to
the appointment and control of harbour masters as
well as to the establishing of fees for the use of the
harbour and the implementation of provisions
respecting the use of the harbour (e.g. removal of
abandoned wrecks). I do not read these provisions as
inconsistent with control of the wharves by another
minister.
It may very well be that the harbour facilities and
marine facilities (such as the wharves here in ques
tion) are under the control of the Minister of Fisher
ies and Oceans while the harbour itself is under the
control of the Minister of Transport. In that case, the
applicant could not in any event successfully chal
lenge the refusal of the Minister of Fisheries and
Oceans to issue him a licence on the ground that the
refusal came from the wrong minister. This would be
so even though the harbour master, fees for use of the
harbour itself and other regulations respecting the use
of the harbour might be under the control of the Min
ister of Transport.
Conclusion
For the reasons given I am not convinced that
SI/82-117 in so far as it relates to Channel (Port -aux -
Basques) is ultra vires the authority provided for in
subsection 35(1) of the Public Works Act.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.