Decision No. 271-W-2010

June 23, 2010

File No. W9125/10-01261

APPLICATION

Marine Atlantic Inc. (Marine Atlantic) filed an application with the Canadian Transportation Agency (Agency) for a review of Decision No. LET-W-179-2009 dated December 16, 2009.

BACKGROUND

Marine Atlantic had applied for a licence to use the "ATLANTIC VISION", a Cypriot passenger roll-on/roll-off cargo ship, to transport passengers, vehicles and freight between North Sydney, Nova Scotia and Port aux Basques and/or Argentia, Newfoundland and Labrador.

Great Lakes Feeder Lines (GLFL) offered its ship, the "DUTCH RUNNER", to perform the freight transportation service activity.

In that proceeding, the issue of splitting the activities was raised by the parties. The Agency considered this matter and, in Decision No. LET-W-179-2009, concluded that the evidence provided by Marine Atlantic did not support a finding that the activities could not be split and that they had to be performed using the same ship.

Marine Atlantic sought leave to appeal the Agency's decision to the Federal Court of Appeal on January 15, 2010, which was dismissed on March 19, 2010.

ISSUE

Has there been a change in the facts or circumstances pertaining to Decision No. LET-W-179-2009 since it was issued that justifies a review of this Decision pursuant to section 32 of the Canada Transportation Act (CTA)?

ANALYSIS AND FINDINGS

Agency's jurisdiction

Pursuant to section 32 of the CTA, the Agency may review, rescind or vary any decision made by it if, in the opinion of the Agency, since the issuance of the Decision, there has been a change in the facts or circumstances pertaining to the decision.

It is important to stress at the outset that the review contemplated by section 32 of the CTA is not an open authority for the Agency to review its decisions. The Agency's jurisdiction under this section is limited and only arises if there has been a change in the facts or circumstances pertaining to the decision since its issuance. Accordingly, the Agency must first determine whether there has been a change in the facts or circumstances pertaining to the decision sufficient to justify a review and, if so, then determine whether the new facts or circumstances justify a review, rescission or variance of the decision.

This case

Marine Atlantic disagrees with the Agency's finding that the proposed ferry service has two distinct activities, namely a passenger and passenger vehicle ferry service, and a freight transportation service.

Marine Atlantic also contests the Agency's jurisdiction to split the proposed service activities.

As mentioned above, the Agency only has jurisdiction under section 32 of the CTA if there has been a change in the facts and circumstances pertaining to the decision since it issued. The Agency finds that the request for a review is not based on new facts or circumstances. Marine Atlantic is merely challenging the Agency's decision to split the application into two distinct activities.

Further, the Agency determined in Decision No. 168-W-2010-eng">168-W-2010 dated May 7, 2010 that there was no suitable Canadian ship available to perform the activities described in the application and, as a result, Marine Atlantic can perform the transportation of passengers, vehicles and freight using the "ATLANTIC VISION". The issue is therefore moot.

Accordingly, the Agency dismisses this application.

Members

• Geoffrey C. Hare
• Jean-Denis Pelletier, P. Eng.